Have you been watching 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 the 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 it, otherwise it is 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? And 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 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.” Apply it to your practice.
Lesson No. 2: Acknowledge the role of chance and circumstance. There are times that, even if a lawyer had acted differently, he still would have lost. Why? A lot of what happens is out of our control. After engaging in the sometimes painful exercise of doing an after-action report, lawyers should give ourselves a break and embrace the reality that, despite our best efforts, we are at the mercy of events. I was defending a suit in which the plaintiff was claiming negligent misrepresentation in hiring. In closing arguments, I was speaking to the jury, and 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? I think so.
Lesson No. 3: Accept the dirty 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 get better by killing patients. The bottom line for our profession: Lawyers learn by losing clients’ cases or botching their transactions. But this doesn't necessarily mean that MDs or JDs are committing malpractice. A surgeon or lawyer with 30 years of hard-earned experience knows more than a surgeon or lawyer 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.” And 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 lawyers taking a minute to say, “Mike, the court of appeals still has a say. Good work.” Being gracious costs us nothing. Not being gracious costs us a lot.