February 21, 2017

The Art of Losing

Law360 In-Depth

I once represented a valedictorian public high school student, precluded from expressing her religious views in her graduation speech, in a First Amendment challenge in Nevada federal court. We had won in the district court but lost on appeal — predictably, I might add, because of Ninth Circuit controlling law. We were angling for the United States Supreme Court and were now awaiting a decision on our petition for certiorari. To lose would be final vindication for the other side. If the court granted cert we'd start a whole new ballgame. Our excitement grew each day as the universe tossed tantalizing signs our way. The court required the other side to respond to our petition. listed ours as a case to watch. The court conferenced our case once. Then again. Clearly (we thought) the justices were taking our petition seriously. Of all the petitions for cert filed, could ours be one of the handful that would be heard? But then, after what seemed like an eternity, the curt denial came. We had lost. What now?

I thought about this recently when, last year, I sustained three losses in a row, in three different cases, in three different courts. (Just in case you are an in-house counsel thinking "I better not hire this guy," I've had my share of wins too! But litigators tend to dwell on the losses.). There are 94 federal district courts, 13 federal appellate courts and hundreds of state trial and appellate courts across the country. Each day, the judges of those courts decide motions, preside over trials and hear appeals. With each of these decisions, one side wins and the other loses.

Losing is very much a part of a litigator's life. And when we lose, we are supposed to just move on. We spend a good part of our days advising clients on the odds of winning and losing. Sometimes we win when the odds are against us. Other times what we swore was a sure thing ends in terrible defeat. Tallying up wins and losses tells us virtually nothing about a lawyer's skills. A lawyer who has practiced more than a couple of years and claims to have never lost is either fibbing or extremely selective in choosing cases (or a government prosecutor.). And God knows there are many opportunities to lose, from the prosaic of a routine discovery dispute to the profound of a vigorously fought trial or appeal.

Losing is routine and we are supposed to accept it with grace and aplomb because we have played our part in a system that transcends our particular case. Lawyers are officers of the court, part of a larger than life adversarial process designed to ensure that the truth prevails in the end. We are supposed to be advocates for hire, not true believers. The label "true believer" is, in fact, often tossed around with some measure of disdain. Even when losing, we are supposed to feel assuaged that the system has played itself out.

Judges often expect lawyers to approach their work in this philosophical and detached manner. Your motion for summary judgment, that may have taken years to develop and write, as often as not ends with the judge declaring from the bench the single word "denied." You are then expected to move right along to the administrative details of what's next. "Now that we have dealt with your summary judgment motion, let's talk motions in limine and a timetable for submitting jury instructions. And how many witnesses will you be calling at trial anyway?" No break. No empathetic words. Losing is a part of the process so accept it and move on.

This attitude expected of us makes some sense. If as lawyers we didn't believe in the adversarial process we would be pulling our hair out a lot more than we already do in this high-pressure profession.

Yet at a deeper level this description of lawyers and lawyering does not do justice to who we are and what we do. A good and effective lawyer is a true believer. When the preparation is done and you enter the courtroom about to do battle on the front lines, you had better believe your own words. And most of us do. The best lawyers advocate with passion. Passion does not mean loud. It does not mean flashy or flamboyant (necessarily). Passion comes from the credibility of belief, which in turn comes from internalizing our clients' problems as our own. It comes from the pride of developing an off-the-wall argument that, though a long shot, is surely right. Passion means not just believing you are right but wanting to persuade others.

We are therefore deflated, emotionally worn out, even crushed, when we lose. We want a time-out before moving on to talk about how many days a trial will last. We want colleagues, family and friends to nod their heads when we rail about the injustice of it all. We lose sleep, visiting again and again in our heads what we could have done differently. We lash out at a system that often gives us good reason to rationalize our losses. Sometimes we lose because we are out-lawyered. Sometimes we are foiled by our own strategy that backfired. Sometimes judges may just get it wrong.

This does not mean we can cry foul and attack the system by which we are required to defend. Litigators typically do not, for example, lash out at the "so-called judge" or call the hearing that defeated us a sham or a disgrace. As lawyers vindicating an adversarial system we are not allowed to wallow in our defeats. We are expected to get over it, pick up and move on. And move on we do. Often there is some next step to which we can direct our passion. There may be an appeal, a motion for a new trial, a plea to a legislature.

But sometimes there is no next step. Sometimes losing is losing, once and for all.

That's the way it was with my cert petition. No more appeals, no motions for rehearing. No legislative fix. No next steps at all. Yes I felt crushed. Yes I felt deflated. But then, as the press of other work came into clearer focus, I began to persuade myself that our position would be vindicated in the end, not in my case but maybe in some other. Not now but maybe well in the future. Because the system, though imperfect, is the best we have, and things must turn right side up in the end. Right?

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