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Shock and denial. These are the first two stages of grieving experienced by human beings who suffer a loss, according to psychologists. But in all our years of law school and practice, has anyone prepared us for the emotional experience of losing an argument, a deal, a case? Has anyone coached us on how to prepare for the moment we get our heads handed to us publicly? When our adversaries remove a body organ without anesthesia? Other human beings experience slights, hurts, humiliations and disappointments. They live their lives with elements of risk, chance and tragedy. Lawyering, on the other hand, is among the rarified professions where errors cost tremendous amounts of money, personal liberties and untold misery. Legions of our colleagues, elected and appointed, are armed with statutes designed to deprive us of our livelihoods if we act frivolously or erroneously. A search of our collective souls would find personal inventories of 20/20 hindsights revealing arguments that could have been made (or that should not have been made), precautions that could have been taken, opportunities that should (or should not) have been exploited, and risks that should (or should not) have been taken. So we live on the edge. We walk into a room absolutely certain a deal is getting done and it blows up because of something we didn’t do. We trip lightly into a courtroom full of grace, ease and slight condescension toward our poor adversary who is about to be crushed by our legal marvels, and then gasp “but your honor … ” that just manages to escape after having the wind knocked out of us. These are gut-wrenching, sweat-inducing, spirit-breaking “my entire career is over” moments — and we’ve all had them. For a lucky few, these moments are a split-second and the recovery quick. But for the rest of us, we’ve had to take that unfavorable ruling to our clients and explain why we were dead wrong. Even David Boies had to look eye-to-eye with Al Gore. We’ve had to move to reconsider or appeal. We’ve had to endure the mocking taunts of our adversaries or competitors. As small practice underdogs, how do we deal with it? PLAN FOR FAILURE Never guarantee a victory. If you are 100 percent sure that a clerk or judge will reject your application and that something completely simple will have to be remedied, file early to have time to run back when you are correct. If you are polite and unbelievably persistent, the clerk will explain what you need to do. He or she can almost always do a slight favor or make a helpful suggestion that will save time and money. Be nice. DETERMINE WHETHER THE SETBACK WILL CAUSE YOUR DEATH If you think out the worst possible scenario and accept the consequences, you’ll be more at ease moving ahead. If total loss and utter disgrace will not actually cause your death, it’s comforting to remind yourself of that. I think, “I’m a terrific waiter, a decent cook and although my ashtray-cleaning skills are no longer in demand, I’d make an honest living and have a better social life if deprived of my law license.” In tough times, I find these thoughts comforting. DON’T BURN BRIDGES When shock and denial hit, don’t act like a human being. Don’t say any of the things you feel about the clerk, the judge, your client. Just set up appointments to strategize. Reread everything. Try to get some exercise, blow off steam in a positive way, let your judgment uncloud. Not everyone is conspiring against you. If you’re honest, you’ll probably find a lot of things you could have done better, or acknowledge some hard facts that your subconscious didn’t permit you to see. Tantrums or giving in to conspiracy theories will just blow up in your face. Yell and scream only when it is carefully calculated and inner calm prevails — on the very rare occasions when nothing else will work. HIT ‘EM BACK An older litigator who once consoled me after really getting clobbered said, “When they knock you down, just get up and hit ‘em back.” The phrase continues to ring in my ears when I know in my heart that I’m right but my approach must have been wrong. I question all of my assumptions, research 10 times harder, try really listening to what the judge and my adversaries have said, and then let fly. RUN Kenny Rogers sang,”You gotta know when to hold ‘em, know when to fold ‘em, know when to walk away, know when to run.” When I started out, every issue seemed to present an enormous litigable controversy, every contractual provision to present huge and unknown dangers and unfairnesses to which I could never possibly agree to submit my client. Time and perspective teach that when you realize that you’ve made an error, either drop it or immediately own up to it. It’s not weakness; it makes you stronger. Perhaps acceptance of a total failure is appropriate. Think hard on it. TURN IT AROUND A corporate dealmaker once told me that every lawyer makes mistakes. The difference, according to him, is that great ones know how to turn their blunders to their advantage. Look for the silver lining. A great lawyer knows it’s there. ASK SOMEONE WHO KNOWS BETTER You should be cultivating relationships with people you respect and trust. When you’ve been clobbered, getting outside perspective is essential. And don’t duck their “simple” questions. They are probably the same “simple” questions the judge had that you failed to answer. It helps to write it down and repeat it out loud to yet another person: “I checked with someone I trust, and his advice was …” For some reason verbalizing it will help you regain your objectivity. On the way to achieving your goals, there will be setbacks, losses, embarrassments, slights, unkindnesses and cruelties. You may be bullied, sandbagged, short-noticed, thrown off calendars, shouted down, ignored, overbilled, underestimated and passed over. Human nature tells us that over time even your clients may betray you, cheat you, lie to you, demonstrate ingratitude and then not pay you. And let’s not forget: No one feels sorry for lawyers. In the end, a lawyer’s best remedy to keep going after getting clobbered is to keep laughing, keep hoping, and keep having faith that in this imperfect world, justice will shine through. And when it does, embrace those precious moments, pat yourself on the back, preen and take pride in what you’ve crafted. But don’t gloat when you clobber someone. It’ll soon be your turn. Raymond J. Dowd runs the commercial litigation practice of Dowd & Marotta. He serves on the board of directors of the New York County Lawyers’ Association.

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