Thursday, February 08, 2007

Why it's hard to be a trial lawyer

I had lunch with a friend the other day. He's one of the smartest and hardest working lawyers I know. The kind of guy who reads every decision and knows every nook and cranny of the law relevant to his field. He was telling me about a couple of cases he had. In one, he won the unwinnable case. In the other, he lost the unloseable case.

We make decisions as trial lawyers. Should we have a jury trial, or go with a bench trial (where the judge serves as the "finder of fact")? Or you're in a situation where the case has gone very well for you, and you have to decide whether to put in more evidence. The prosecution's case was very weak - do you have your client testify? Should I ask the witness one last question?

You can do a trial, have a fantastic case, do everything correctly, and on top of that things break your way during the trial that you didn't even expect, and yet you can still lose. Or on the other hand, everything can go badly for you and you win anyway.

Winning is great. You feel very up after you win. But for me at least, and I think for many other trial lawyers, you still second-guess yourself on those decisions. Even when you win. I usually don't sleep well when I'm on trial, and it's the worst after the trial is over. I can't stop thinking about those decisions, what I did, and whether I should have done something else.

Losing is unpleasant, and the negative feeling from a loss is much, much greater than the positive feeling from a win. Sometimes you see ahead of time that you're going to lose, or at least that you're likely to lose. For me those are the easiest cases emotionally. You still do the best you can, and you agonize over some decisions, but losing in a case like that isn't such a big deal. I sleep better on those cases than I do on the wins.

Losing a good case is extremely hard. You have trouble moving on to other things. It is depressing and you can go into a funk, sometimes for a week or more. We suffer tremendous self-doubt afterwards. I've talked to several other trial lawyers who feel the same. The friend I mentioned above was talking about how he lost the unloseable case. The loss was months earlier, and yet he was so animated in describing it. A loss like that is so frustrating, so upsetting, that we just can't let it go. It can make you "gunshy," afraid to take risks in future cases.

Losing weighs so heavy on me that I question whether I should really be a trial lawyer. On the one hand it causes me to question whether I'm good enough. Maybe I lost because I'm just not that good as a trial lawyer. And on the other hand, the psychic damage from losing is so powerful that I just feel like I should find another line of work.

Of course I believe I am a good trial lawyer. To say I have a strong ego is a severe understatement. Most trial lawyers have very healthy egos. It's really a requirement. Anytime I have lost a trial where I should have won (or won when I should have lost), it always comes down to one simple thing: the finder of fact was just plain wrong. Usually that's a jury, but sometimes a judge. I think they get it right about 80% of the time, maybe 90%. That's not too bad, but not great either.

In my egotistical way, I have talked about how winning and losing affects me. As attorneys we must remember that the impact on our clients is far more serious. One lawyer friend of mine put it this way at a seminar: "I've never lost a trial. Many of my clients have lost trials, but I've never lost one."

When we lose a trial, our client loses much more than we do. Criminal defense clients, in particular, can lose their liberty, their right to vote, their jobs, and much, much more. We move on to the next case, but the case we just lost was their only case.

It's very important to communicate this to our clients, and I have a way of doing this. I tell them something like the following, usually when they ask me whether they should take a deal or go to trial -- "I love trials. I get paid more for doing it, and if we win, it's a great feeling. If we lose, I don't go to jail. I get to keep sleeping at home. You're the one who does the jail time if we lose, so you have to decide what to do here."

Getting back to the lawyer's pain of losing, one other thing really stands out. It doesn't feel that bad to lose when you represent a guilty client in a criminal case. You still fight hard, and do your best to win the trial. It still bothers you a bit when you lose. But when a guilty client goes to jail, it's not that upsetting. The worst is losing when your client is innocent. It happens. I can't think of anything more unpleasant in my work than that experience.

It's tempting to throw your hands up, and give up on the system. I can't do that. It is a flawed system, but I'm not aware of any alternative that comes anywhere close.
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