Did you watch the Olympics? I love the medal ceremony, but my focus is not on those athletes who win the gold. I watch the runners-up, those decked in silver and bronze.
Athletes lose; so do lawyers. How should we handle losing? What does it teach us? I have tried a lot of cases, and I have lost some. Here is what I learned.
Lesson No. 1: “All experiences are good ones as long as you draw the right lessons from them. Otherwise, they are just something that happened to you.” My mother taught me this. Self-examination is painful but necessary for growth.
After every case, win or lose, I do a personal after-action report (a term borrowed from the military). What did I do right? What could I have done differently? It’s important to be honest. Sometimes, the truth is that, even if I had done things differently, the result would have been the same.
Clients also like such after-action reports in terms of improving their organizations — not to cast blame but to figure out what they did right and how to do more of it, and what did not go so well and how to avoid it in the future. The Japanese word kaizen roughly translates as “incremental improvement.” Lawyers should apply it to their practices.
Lesson No. 2: Acknowledge the role of chance and circumstance. There are times that, even if lawyers had acted differently, they still would have lost. That’s because a lot of what happens is out of their control.
After engaging in the sometimes painful exercise of doing an after-action report, lawyers should give themselves a break and embrace the reality that, despite their best efforts, they are at the mercy of events.
I was defending a suit in which the plaintiff was claiming negligent misrepresentation in hiring. In closing arguments, the lawyer for the plaintiff rustled his papers. I kept speaking; he kept rustling. A woman on the jury gave him a severe look, not once but several times — a really severe look. I know he was not doing it on purpose. It was, I believe, a nervous habit.
But the displeased juror ended up as the forewoman and apparently did not see the rustling the same way: As the jury returned with its verdict, I glanced at her, and she slyly nodded her head toward me, like a first-base coach signaling a steal. Did the rustling matter? Perhaps it did.
Lesson No. 3: Accept the hard truth about losing. Atul Gawande is a famous surgeon. In “The Malpractice Mess,” a November 2005 article in The New Yorker, he lays bare a painful truth: Doctors learn through trial and error, sometimes with unfortunate consequences. The same is true of the legal profession. It’s not that MDs or JDs are committing malpractice. Rather, surgeons or lawyers with 30 years of hard-earned experience know more than those with 10 years of experience. And how do they gain that experience?
Gawande, like me, is a longtime baseball fan, and he analogizes the doctor’s dilemma to that of a third baseman: Those at third base, over a season, have as many chances to throw a base runner out as surgeons do to operate. But everyone playing a full season will make stupid mistakes — Gawande estimates it’s about 2 percent of the time. Those mistakes mean a lead-off runner on first base or a patient in the morgue. Bottom line: Professionals should take every opportunity to learn, value every defeat and get better.
Lesson No. 4: Be gracious. Today’s enemy is tomorrow’s friend. Lawyers and athletes who do not understand this universal principle are asking for trouble.
Approach vanquished foes by being gracious. Understand their pain. Here is Emily Dickinson: “Success is counted sweetest/By those who ne’er succeed.”
Lawyers, unlike some athletes, do not need to hug the opponent. Personally, I like the hockey players who, after they beat the living daylights out of one another, shake hands in a line at the end of the game. When I lost a case in El Paso, I still recall the plaintiff’s lawyer taking a minute to say, “Mike, the court of appeals still has a say. Good work.” Being gracious costs nothing. Not being gracious costs a lot.
Lesson No. 5: Learn the art of reframing. Yes, a loss is a loss. It is toted up forever in the competitor’s loss column. There is no getting around that. But, people are 100 percent in control of how they react to a defeat. Losing can become a habit, but only if we let it.
People fail to change a losing trajectory because of the tendency to frame issues in terms of a false dichotomy. Mary C. Gentile writes about this in “Giving Voice to Values: How to Speak Your Mind When You Know What’s Right.” She references organizational scholar Chris Argyris’ theory of a defensive reasoning, writing that people see things in terms of win/lose and controlling/being controlled, and that makes them blind to new information and others’ way of seeing situations.
Gentile proposes that it’s better to help others view the previous decision as paying dividends, even if those gains don’t take the anticipated form. Reframe from the win/lose point of view — “We did not get what we wanted” — to a more productive perspective — “What did we learn?”
Finally, here’s a thought from Jim Murphy, who trains collegiate, professional and Olympic athletes in multiple sports. His book, “Inner Excellence: Achieve Extraordinary Business Success Through Mental Toughness,” is a must read. On his blog for July 12, 2010, he wrote that he hated to fail, had given his entire life to the pursuit of being a great baseball player and didn’t make it.
What life lesson did he learn? “We fail because we obsess about the future and cannot be present in the moment. In our relentless pursuit we focus so much on achievement that we miss lessons along the way. We’re busy, but we are not growing; accumulating knowledge, but not wisdom. . . . We fail because we fail to learn.”
While gold is a beautiful color, silver and bronze are as well.