ABA Journal


Question of the Week

How do you get through the day after a losing verdict?

Jul 3, 2013, 01:00 pm CDT


During my 36 years and 300+ jury trials I lost many I should have won, but won many I should have lost. After a tough loss often when my child was young I would just go spend some uninterrupted hours with her and that would renew my focus and put things in perspective. When she was in college I redirected those times to my best friend who is my spouse. Time with them always let me see the big picture and realize no matter how bad the loss the sun comes up the next day and life moves on.

By Randy Fischer on 2013 07 03, 5:42 pm CDT

I am a state prosecutor who, along with Randy above, has won many trials that I though were sunk and have lost many that I thought would result in a clear guilty verdict. Immediately after a loss, I always speak with victims and witnesses and explain what may have happened. If I have the opportunity, i'll speak with jurors who are willing to speak with me. That process could take an hour or longer, especially when I hash out the trial with fellow ADA's. When that's done, I will do something for myself to immediately get my mind off of "debrief mode." I will usually go grocery or clothes shopping, go to the gym, or cook a meal. Then I get back to the grind - more crime, more cases.

By Mary on 2013 07 05, 11:08 am CDT

About 18 months ago I was forced to try a P.I. matter to verdict when the settlement offer was ludicrously far below the value both my client and I thought was appropriate. After a week of trial the jury came back and imputed 60% contributory negligence to the Plaintiff thus ending my efforts. I took the attitude that you win some and you lose some. To have accepted the piddling sum offered during jury selection would have labeled me a "pushover" in the records maintained and shared by the insurance industry. Although I was disappointed, along with my client, I regarded the effort as maintaining my trial lawyer reputation. Both of my adversaries complimented me on my efforts in the presence of my client and I don't think they were just being polite. Those two thoughts sustained me and allowed me to go on to the next one.

By Robert P. Zisgen on 2013 07 05, 11:10 am CDT

I get to find out today.

By John Davidson on 2013 07 05, 1:38 pm CDT

When the kids were young and at home, I'd get 'lost' with them playing whatever they wanted to do. I'd also then 'chill' by watching "The Blues Brothers". Despite the outcome, still retaining the "we're on a mission from God" mentality. Great music, too.

By The Jet on 2013 07 05, 1:49 pm CDT

I remember losing a PI trial that I thought would be an easy win. After trial, I had to carry my large exhibits out the court room, they were heavy and walk to my office several blocks away. I felt like I was going to brake down on the walk. I didn't go to my office for a couple weeks and sulked alone. It was hard because it was my first trial and felt that I was rejected in the biggest way of my entire law career. I am still not over it. It is emotionally scaring, permanently.

By The Loser on 2013 07 05, 2:26 pm CDT

I defend criminal (and, forfeiture) cases, primarily in the federal courts. Adverse verdicts, while not overly common, are, of course, a fact of life.

When it happens, I:

Explain it as best I can to the client; then,

Do as much intra-/retrospection as I need to try to be sure that I did everything there was to be done, and did it as well as possible, and didn't do anything that I really should not have.

When I'm past that process, I just get on with the rest of it all.

Surgeons don't like to have patients die on the table or come away from a procedure worse off than when it started; but sometimes, notwithstanding best efforts and competent performance, it happens. It happens to us, too.

By DLW on 2013 07 05, 2:32 pm CDT

I prepare beforehand by reminding myself not to take too much credit for the wins or too much blame for the losses. Losing does not mean you did anyting wrong; unless you only try slam-dunk winners. Just as in sports; learning to lose gracefully is part of the game. I sulk for a day or two and then get back in the game.

By Scullaw on 2013 07 05, 2:35 pm CDT

Having just got hit in Brooklyn for a pro plaintiff verdict (me insurance defense)(albeit with a high-low agreement in place), I find all of the above is true. I took my son to see Man of Steel, I pumped some iron weightlifting in our basement and I moved on quickly. True playing with house money for the carriers also makes it a bit easier. The best words of advice came from one of the judges I clerked for right out of school: "Your going to win some you should lose and your going to lose some you should win." Your are truly not a litigator/trial lawyer until a jury comes back and tells you sorry we liked the other side better this time and for no particular reason.

By EJF on 2013 07 05, 2:53 pm CDT

After retirement I still go over In my mind losses or partial verdicts. I never got over some cases which I replay in. My head, sometimes it is useful for you to Appel an unjust dismissal or charge for your own mental health. There is one dismissal that I regret not appealing. Losing can be a strong blow to your ego and also a learning experience. My motto was to critics.,you can't lose a case if you never tried one. Courage and fortitude are necessary because the pain of loss is a body blow.

By Fred Ehrlicch on 2013 07 05, 3:50 pm CDT

Well being as it's my boss who loses all the costs he put into the case, etc .. When we lose one I just find solace in the fact that we do our job thoroughly and it was more likely than not just a bad case. Can't win em all.

By You call this coffee!? on 2013 07 05, 5:01 pm CDT

Retire to the tavern and curse the judge.

By Larry Rice on 2013 07 05, 7:10 pm CDT

I spend my day planning a revenge. If verdict was materially wrong, I spend my day collecting compromising materials about the judge, to later file professional ethics case against the judge. If I lose in a lower level court, I will go to the court of appeals (with client's consent). If I lose in the court of appeals, I will go to the local supreme court. If I lose in the local supreme court, I will go to the national Supreme Court. What doesn't kill you, makes you stronger. I never give up.

By Anna Gray on 2013 07 05, 8:16 pm CDT

Get a job as a bartender?

By Tom Youngjohn on 2013 07 06, 4:39 am CDT

I don't believe #6 especially after using brake instead of break.

By uo on 2013 07 07, 12:48 am CDT

As a family law attorney, I don't really know what a winning verdict feels like. Even if you win on many points, if you make a judge sit through a divorce/support/custody trial, s/he will be certain to put something in the decision to piss off everybody.

I had a custody case where after about 4 hearings my client won her request to change venue (moving the court case 200 miles from where the father lived) and maintained primary custody. But she was minimally ordered to pay around $1k in attorney fees for her role in bringing about the court battle, which was substantial. I'm sure that amount didn't even cover father's attorney fees for that appearance, and it was the only attorney fee award made in the entire proceeding. Therefore, she felt incredibly burned by the judge and obviously I didn't do enough to improve the outcome for her. I felt like it was a stunning victory, but my client was pissed so it was another shitty day.

That was just one of many lessons that taught me how integral client screening and managing expectations are to maintaining my sanity in this crazy field where validation of your position by the court is rare and vindication almost nonexistent.

By Sarah on 2013 07 08, 4:19 pm CDT

The disappointment of a trial loss is often profound. Lawyers who spend a career trying cases invest much of their creative powers into developing and presenting their cases to a jury. They spend countless hours preparing for opening statements, closing arguments, and cross-examinations. Not an aspect of the case is overlooked . . . not a fact disregarded before it's considered as part of the "winning" theory. The stress is enormous and dealing with it comes at great cost. When we lose, it hurts. No less than a broken relationship or a nail coming our boot. There is not much we can do to recover from this disappointment, except to wait. To wait for the healing power of time to protect us. For each loss, a part of the trial lawyer may die too. But for us who are called to battle over ideas in the public eye, to try each case with zealous abandon, we just pick up ourselves and move to the next case. Sometimes it's only the next case that helps us get past the last one.

By Steve on 2013 07 08, 8:00 pm CDT

I have always been able to cherry pick my cases, I don't take it if I don't truly believe in it. Therefore, when I lose I don't do well with it at all. First, I talk to the client and try to explain what just happened, if I can. Second, I take some time to replay my part and figure out what (if anything) I could/should have done differently. Third, I debrief if appropriate with coworkers. Fourth, I go home and refocus: work in the garden; sew; talk to my spouse; snuggle the dog (when we have one); and perhaps have a glass of wine with a good dinner. Oh, I probably read a trashy romance novel with Happy Ever After ending. Some losses stick with me years later, sometimes I move on, it depends. I didn't win a huge case recently, but the court said I did a great job before ruling against me so that helped a LOT.

By Desert Wren on 2013 07 08, 10:07 pm CDT

The best advice I ever got in 40 some odd years of trying jury cases was this: " Remember: today's disaster is tomorrow's cocktail story!"

By John T. Marshall on 2013 07 09, 2:16 am CDT

There were six Fast & Furious movies?

By Huh? on 2013 07 09, 2:10 pm CDT

I'm a new attorney (still in my first year), and I have not had any jury trials. I have, however, had several small claims trials. Some of them are easy slam-dunk wins, and others are cases where they SHOULD be slam dunk wins except where my client has done something really, really stupid. I always feel horrible for losing because the effect on my client can be huge (ex: losing an FED defense on a real estate contract case means my client is booted out of the home they've been buying for several years), but ultimately, it was my client who made a dumb decision that tanked the case.

Doesn't make it any easier to remember that my client is the one who screwed it up, or that it was just a loser case to start with. I still feel bad, and wonder over and over what I could have done differently. Having real people's lives in my hands is very different from mock trial and theoretical situations in school. It's even different from my clinic experiences, where I had professors to make sure I didn't screw up and remind me that it wasn't my fault.

By RecentGrad on 2013 07 09, 2:26 pm CDT

Heavy drinking and a one-night stand take some of the sting out.

By Coping With Loss on 2013 07 09, 3:33 pm CDT

I do the same things save one. I always:

1) Mark the notice of appeal date in my calendar
2) order the transcript to review my performance
3) speak to my client (good or bad); and last....
I either drown my sorrows with scotch or celebrate my win with a whisky from Scotland.

*Please someone get that joke.

By Jim P on 2013 07 11, 6:25 pm CDT

I have been practicing law for over 24 years. Losing sucks but thankfully I have won more cases than I have lost. The way I look at every case, however, is that win or lose, I had the guts to try. I remind myself of the oft-quoted words of Teddy Roosevelt (see attached link for full-quote) that "The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly; who errs and comes short again and again .....

By Tom B on 2013 07 13, 2:42 pm CDT

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