On Losing a Trial…

Dear Lawyer:

We all know that you worked really hard on this case. You stayed up late, you lost weekends, you “researched” your issues, your prepared your arguments and theories. But you lost.

Trying to figure out why a jury “went wrong” is about the same as figuring out who shot Kennedy. Everyone has a strong opinion, no one really knows, there are obvious answers and also viable theories. In the end, what’s done is done, there are some things we may never know. You may never “know” why you lost, but I think that some things are always true in every win, or loss.

After every trial, I write down what I did well, what I could do better, what I would change, and what I would watch out for next time. I keep it until the next trial, read over it, and throw it out. You”ll be amazed at how things that are obvious now to you will be forgotten in a few months.

Platitudes to follow: Keep fighting the good fight, you win some, you lose some, you gave it your all, juries are unpredictable, on any given day- any given team. These are all true, though not very comforting.

I would take comfort in this: you are pissed off. That means you care. If you don’t care, you shouldn’t have this job. A really great trial lawyer told me that when the passion is gone, you need to study up on real estate closings. Keep your passion and apply it to the other cases you have. The fact that your pain, your hurt, is for your client, and not yourself, shows that you are doing things the right way and for the right reason.

I have a friend that is a great trial lawyer. But he lost his first trial, his second, his third, his fourth. He became convinced that HE couldn’t win a trial, regardless of the facts (and those cases were tough). He wanted to stop trying cases. Then, he cleaned the slate, talked to some other trial lawyers about technique and approach, hunkered down, RELAXED, and went back to work. He has not lost a case in a long time. Things can turn around. Change can happen.

But I know that when I lose a case, even when I serve as an arbitrator and the other two arbitrator’s go 2-1 against me, I’m ticked off for at least 3 days. I blame myself first, then make the rounds through the parties, lawyers, fate, the weather, bad press, the Chamber of Commerce, Allstate, judges, racism, sexism, and the War in Iraq. It’s everything and nothing to blame. And then I realize that as trial lawyers, we’re always trying to figure out causation, and I’m obviously forgetting that it’s “A” proximate cause, not “THE” proximate cause.

I’m going to be on the lookout for a report of a victory. It will happen, just be patient and keep reminding yourself that you are fighting for the right cause. Try to relax, and think forward not backward. It will come.

-Chris Nichols