April 2006 / Volume 42, Issue 5

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On falling—and getting up again

“Young lawyers think trying cases is all glory. But trial lawyers pay a price unknown to our armchair colleagues who never stray beyond the safety of their desks. Trial lawyers lose cases. If you lose at trial, every explanation seems lame. The jury has rejected you. It’s a personal defeat. It burns in memory. Defeat is the price trial lawyers pay for success.”

—Attorney Henry Miller

I just lost a case. It was an important case for my client, for my firm, and for me. I walked out of the courtroom into a sunny day that was, by South Dakota standards, quite warm, yet I couldn’t shake the chill. Not that it was the first case I’ve lost, by any means. It might not be the last, either, but hope springs eternal.

In the ensuing days, I’ve been reflecting a lot. Of course, I’ve wondered the obvious: “What could I have done differently?” That’s an important aspect of post-loss analysis, I would argue. Sometimes we discover things, both tactical and strategic, that we could have changed, and we’re usually in a better state for learning after a failure than coming off a success.

The challenge, of course, is to figure out whether anything done differently would have produced a different result, and that’s almost always impossible to know. In our work, there are so many variables—choice and order of witnesses, one expert versus another, use of demonstrative evidence, the list is endless—that, without the ability to go into some parallel universe and try each combination, we’ll never really be sure.

The more vexing question—and it gets tougher with each loss—is how do I, as a trial attorney, deal with this? In some ways, the question seems trivial and irrelevant. After all, the parents of the disabled child I represented have an awful lot more to deal with than I do. They still have to provide for her ever-growing needs, and now they’ll have to do that with whatever help they can get from their families and the government.

As I write this, I realize that a large part, maybe the largest part, of the pain of this loss is the feeling that I’ve let them down, that their trust in me was misplaced. I will have other cases. This family had only one, and now they have to live forever with the consequences of the defendant’s negligence—and their lawyer’s failure to convince a jury of it.

I do have another case to turn to, and since becoming a real estate lawyer or giving up the practice of law altogether are not viable alternatives for me (for reasons of both aptitude and temperament), I have to find a way to deal with the personal consequences of the loss.

It’s inevitable

Glenn Bradford, an AAJ attorney from Kansas City, wrote about losing in Litigation magazine years ago (and his article provided me the quote I used to start this piece). He focused on the inevitability of losing as a part of trial practice for any lawyer who tries a significant number of significant cases.

Glenn pointed out that even Abraham Lincoln, Edward Bennett Williams, and Clarence Darrow sometimes lost, and that many believe that it’s not the lawyer’s performance but the facts of the case that make the difference in most trials. This notion may be comforting in defeat, but if we embrace it, we also must acknowledge it to be a humbling concept when we win.

My recent loss was still on my mind as I traveled to AAJ’s third annual Leaders Forum retreat. One of our speakers was Bonnie St. John, who describes herself as “a one-legged black woman.” She’s also a champion downhill skier, despite having lost her right leg at age five and growing up in San Diego—both obvious impediments to expertise in snow skiing.

Bonnie won the bronze medal at the 1984 Paralympics. Leading after the first day, she could see the gold in her grasp. Unfortunately, Bonnie fell on her final run. With the finish line in sight, she struggled to get up and crossed in time to qualify for third place, a remarkable achievement. Later she learned that the woman who won the gold also fell. The difference between first and third, Bonnie told us, was that the other woman got up faster.

And isn’t that the answer for us? When we fall, we’ve got to be the first to get up. Other families are depending on us to do so.

—Kenneth M. Suggs

» Board Certified OB/GYN Physician-Attorney

» Registered Nurse Paralegals, including a former labor and delivery nurse.

» Attorneys with combined experience of more than 150 years in medical malpractice and pharmaceutical negligence.

» Access to nationally known expert physicians.