Sometimes We Lose

Don’t get me wrong: we don’t want to lose.  We don’t plan to lose.  We don’t like to lose.  But we do.  Every lawsuit is a contest between two sides.  Only one can win.  That means at least 50% of all lawyers lose their cases. Sometimes, both lose.

Good lawyers plan to win.  Not just hope to win (that’s for the bad lawyers).  We pick cases we believe in. Clients who make us want to go to battle for them. We make a plan.  We plan how to prove our case.  We plan the flow and tempo of the case.  We plan out our witnesses, and prepare them extensively.  We plan for the particular opposing lawyer.  We plan for things not always going our way: If this witness crumbles, what other witness or evidence can win that point?  What if our PowerPoint, or the Zoom link fails?  We plan for the judge we get: what quirks does this one have (don’t get me started)?  What knowledge gaps does this one have?  Is this a former family lawyer, who needs explanations of basic anatomy?  Is this a former criminal lawyer who knows the rules of evidence perfectly, but has no idea about family law?  If it’s a jury trial, we plan how to explain things to normal people (I call judges “formerly human”).

But, no matter how well we plan, there’s another lawyer planning against us.  Imagine your doctor trying to make you healthy, while at the same time another doctor is trying to make you sick.  Imagine your mechanic fixing your car, while another mechanic is slashing tires, pouring sugar in the gas tank, and cutting all the wiring. 

And sometimes the judge is against us.  Just doesn’t get it.  Has the wrong idea about the law.  Just hates our client – or us (some lawyers are an acquired taste). Instead of a fair fight, there’s a subtle (or not so subtle) thumb on the scale.

That’s the life of your lawyer.

So, sometimes we lose.  No matter how well we plan, how well we do our job, sometimes we lose.  No matter how right our client’s claim is.

Everyone has a plan, until they get punched in the mouth.

Clients should not expect good lawyers never to lose.  Never losing means the lawyer has never taken a tough case.  It doesn’t mean they are great lawyers.  It means they are cowards.  Muhammad Ali lost spectacularly to Leon Spinks and to Larry Holmes.  Mike Tyson lost to Buster Douglas.  Were they poor boxers?  Nope, they were the best who ever lived.  What made them great was that they never took losing a fight to mean they were losers.

Good lawyers move on to our next case, scarred but not afraid, beaten but not defeated.