Lawyers Lose Cases

If you are reading this then the title must have caught your eye. It is a sort of Man Bites Dog headline. Not the typical self-aggrandizing LinkedIn piece – not that I am not guilty of putting up plenty of those.

On Friday, April 20, 2018 I gave a presentation at the Litigation Counsel of America’s Renaissance Forum XIII in San Francisco. I was honored to be included in this event and I met some very impressive lawyers from all over the country. And, of course, a visit to San Francisco is always a welcome treat.

My topic was a bit out of character for this sort of seminar: When That Really Bad Stuff Hits the Fan: Dealing with Trial Disasters. By out of character, I mean that most lawyers at most such events almost never talk about their losses or “disasters.” After all, these are networking events. We hope the lawyers we meet will refer clients to us so let’s just say that typically everyone tends toward painting themselves in a very favorable light. I get that – and I can’t fault anyone for trying to get business. When I started my talk, I pointed out that great lawyer fiction: The lawyer who claims to have never lost a case. I won’t say there was a gasp in the room, but when the attendees realized I was actually going to talk about cases that did not turn out well, I swear I got some funny looks. 

I suppose there may be lawyers out there who have never lost a case. In 34 years I have not met anyone who could say that honestly – which is not to say that some didn’t say it anyway or makes some slightly hedged comment like winning 95% of the time. If you are a trial lawyer who actually tries cases, you will have some losses. Some of those losses might be big and they are often painful ones. However, as bad as those experiences can be – and they can be really awful – I have probably learned far more from those bad outcomes than I have from my victories (of which there are a fair number, too). When you win a case, you can’t help but assume it’s because of your own brilliance, at least in large part. When you lose, you can’t help but think about what went wrong. Loss causes reflection and analysis, which means something positive can come out of a disaster.

In 34 years I have tried a lot of cases. In my days as a defense lawyer, I probably went to trial more than any other malpractice defense lawyer in Virginia. Yes, I lost some. Some of those losses hurt, a lot. However, if you are going to be a trial lawyer you just have to learn how to deal with that pain and use the experience to improve future performance. In my current life representing veterans and military families in Federal court medical malpractice cases, I have tried to apply my 30 plus years of experience. I hope I am a better lawyer for all I have been through, and I think my cumulative experience helps my clients. For the record, my record representing veterans and military families has some bad outcomes too. As I often tell clients, I cannot guarantee a result. Any case has some risks and potential surprises. All I can promise anyone is that we will do our best.

My talk was well received on Friday and that pleased me, especially as everyone in the room had at least as much experience as I do. Some had much more. It was good to meet these lawyers and hear what they had to say. A couple of them wowed me and that is not easy to do anymore. But here is the funny part: I had never been to an event put on by this organization. When I got there, I found that most of the lawyers practiced in areas far removed from my world of medical errors and omissions. There were Silicon Valley patent litigators there – and I am super impressed by anyone who can try that sort of case. The likelihood of referrals (either way) is low. I have no technology clients and I doubt these folks bump into many potential cases against the VA or a military hospitals.  Still, I learned some new things and I was challenged to question some of my assumptions. That is never a waste of time.