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What do we do when we lose cases as lawyers?
I'm thinking about being a lawyer in the future and my question is what would happen if we lose cases? #lawyer #attorney
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charles’s Answer
Hi Sydney,
My short answer is "You pick yourself up and carry on."
As litigators, we work extremely hard for our clients. We meet with them on numerous occasions and diligently prepare their cases for Trial. In the process, it is inevitable that to some extent, we become personally invested in the Trial result. That is understandable. However, in order to develop resiliency necessary to continue litigating for many decades, attorneys must learn to develop a professionalism that allows us to remain, to a certain extent, independent of the case outcome. After all, we advocate on behalf of clients - we aren't the client. This is similar to doctors professionally performing high-risk surgeries, while realizing that some patients will die. All attorneys lose cases at some point, so we have to learn how to bear up after the inevitable occurs.
Now, let's analyze an example where we have just lost a personal injury case as a defense attorney. The first thing that we do of course is to examine potential grounds for appeal. But I assume that your question is directed to those cases where, after all the dust settles, there is no denying that we lost the case. So, this is what I would advise: learn to develop a solid risk analysis process. For example, ask yourself: "If I were to try this case 100 times, how often would I obtain an unqualified victory, and how often would we lose this case?" By doing so, you begin to build an objective, realistic perspective - you will sometimes lose - without succumbing to unhelpful pessimism. It should also be remembered that it is not necessarily a bad thing to lose; you might have performed your client a high service by not giving in to an unrealistic settlement demand.
For example, as a defense tort litigator, you might evaluate the total damages at $200,000 tops if you lose. Next, you must analyze your chance of success in this case. Assume that it is a toss-up: 50%-50% due to the contested issue of whether a duty was breached.. You then figure that your settlement range is $75K to $125K, based on the most probable outcome of $100,000. However, if the lowest demand is $300,000, you can't in good conscience recommend it. So, you decide to try the case but lose on the threshold issue - the jury finds that your client owed a duty to the plaintiff and breached that duty. Furthermore, damages total $250,000. This is technically a "loss" because theoretically you could have won the case outright with a defense verdict, if the jury had found no negligence on behalf of your client. However, you “saved” your client $50,000 from the lowest demand.
Of course, there are times when a loss is just that - a loss, no matter how you look at it. Then you have to remind yourself that you worked diligently and provided the best defense possible, but the decision was out of your hands – the judge or jury just disagreed. As you advance in your legal career, you will learn better how to accept defeat gracefully; which can help to mold your character in a positive way. It is important to retain a sense of humility, since when working as a Trial Lawyer, the proud and mighty can fall fast and hard.
In summary, if you worry too much about losing, then you will be too cautious in the advice you provide to clients. Over hundreds of cases such unwarranted pessimism will cost your clients a great deal of money.
I hope this helps. You asked a tough question which goes to the heart of the "downside" of choosing a career as a litigator.
My short answer is "You pick yourself up and carry on."
As litigators, we work extremely hard for our clients. We meet with them on numerous occasions and diligently prepare their cases for Trial. In the process, it is inevitable that to some extent, we become personally invested in the Trial result. That is understandable. However, in order to develop resiliency necessary to continue litigating for many decades, attorneys must learn to develop a professionalism that allows us to remain, to a certain extent, independent of the case outcome. After all, we advocate on behalf of clients - we aren't the client. This is similar to doctors professionally performing high-risk surgeries, while realizing that some patients will die. All attorneys lose cases at some point, so we have to learn how to bear up after the inevitable occurs.
Now, let's analyze an example where we have just lost a personal injury case as a defense attorney. The first thing that we do of course is to examine potential grounds for appeal. But I assume that your question is directed to those cases where, after all the dust settles, there is no denying that we lost the case. So, this is what I would advise: learn to develop a solid risk analysis process. For example, ask yourself: "If I were to try this case 100 times, how often would I obtain an unqualified victory, and how often would we lose this case?" By doing so, you begin to build an objective, realistic perspective - you will sometimes lose - without succumbing to unhelpful pessimism. It should also be remembered that it is not necessarily a bad thing to lose; you might have performed your client a high service by not giving in to an unrealistic settlement demand.
For example, as a defense tort litigator, you might evaluate the total damages at $200,000 tops if you lose. Next, you must analyze your chance of success in this case. Assume that it is a toss-up: 50%-50% due to the contested issue of whether a duty was breached.. You then figure that your settlement range is $75K to $125K, based on the most probable outcome of $100,000. However, if the lowest demand is $300,000, you can't in good conscience recommend it. So, you decide to try the case but lose on the threshold issue - the jury finds that your client owed a duty to the plaintiff and breached that duty. Furthermore, damages total $250,000. This is technically a "loss" because theoretically you could have won the case outright with a defense verdict, if the jury had found no negligence on behalf of your client. However, you “saved” your client $50,000 from the lowest demand.
Of course, there are times when a loss is just that - a loss, no matter how you look at it. Then you have to remind yourself that you worked diligently and provided the best defense possible, but the decision was out of your hands – the judge or jury just disagreed. As you advance in your legal career, you will learn better how to accept defeat gracefully; which can help to mold your character in a positive way. It is important to retain a sense of humility, since when working as a Trial Lawyer, the proud and mighty can fall fast and hard.
In summary, if you worry too much about losing, then you will be too cautious in the advice you provide to clients. Over hundreds of cases such unwarranted pessimism will cost your clients a great deal of money.
I hope this helps. You asked a tough question which goes to the heart of the "downside" of choosing a career as a litigator.
Updated
Desiree’s Answer
Whenever you don't achieve your goal, it's disappointing. The same is true when cases are lost.
Depending on the strength of your case, how it played out in court, and what your client wants to do (& fund), you might be able to appeal to a higher court. If you lost at trial court, you hope that the next court will overrule that original decision and rule in your favor. You can appeal that court, too. But appeals are costly, so your client will dictate how far you can pursue that course of action. As an attorney, your personal disappointment must take a back seat to your client's best interest.
Aside for the appeals, you treat it as you would any other professional loss. For some clients, the stakes and the personal impact are different - e.g., immigration matters, family court, criminal court. For others, it is more financial or business related - e.g., civil court, corporate law, bankruptcy. You should choose to practice an area of law where you are comfortable with the wins, the losses, and the consequences. And where you are comfortable preparing your clients for the possibility of loss (even when it's heartbreaking).
Also, please know that no attorney wins every case. No matter how great the attorney is, each case and each client has it's own set of facts and complications. Sometime the case is lost, but you can still sleep well at night knowing you've literally done all you can do for your client.
Depending on the strength of your case, how it played out in court, and what your client wants to do (& fund), you might be able to appeal to a higher court. If you lost at trial court, you hope that the next court will overrule that original decision and rule in your favor. You can appeal that court, too. But appeals are costly, so your client will dictate how far you can pursue that course of action. As an attorney, your personal disappointment must take a back seat to your client's best interest.
Aside for the appeals, you treat it as you would any other professional loss. For some clients, the stakes and the personal impact are different - e.g., immigration matters, family court, criminal court. For others, it is more financial or business related - e.g., civil court, corporate law, bankruptcy. You should choose to practice an area of law where you are comfortable with the wins, the losses, and the consequences. And where you are comfortable preparing your clients for the possibility of loss (even when it's heartbreaking).
Also, please know that no attorney wins every case. No matter how great the attorney is, each case and each client has it's own set of facts and complications. Sometime the case is lost, but you can still sleep well at night knowing you've literally done all you can do for your client.