With unsurprising regularity, a young lawyer twits that he tried a case that he thought he should have won. But he lost. He’s upset. He’s angry. He twits for catharsis. He twits for succor. He asks, “Was it me, did I blow it? I thought I did a great job, but I lost.”
In response, there is usually an outpouring of support from his tribe, other young lawyers of similar stature, assuring the bereft lawyer that he did a great job, that it wasn’t him, that it’s the system, the jury, the law that sucks. But not him.
In the latest one that crossed my path, one older and more experienced lawyer twitted that no criminal defense lawyer (actually, he said “public defender,” but it’s not an important distinction) loses a case and doesn’t doubt that he could have done better. This is a truism, and it should be. Every good lawyer who gets a guilty verdict ponders what he could have done better. Heck, most good lawyers ask the same question even when they get an acquittal, realizing that the verdict could have easily gone the other way. Juries are fickle.
Trial consists of a thousand choices, most made reflexively as there’s no time to ponder or research whether to leap to your feet and say “objection” or ask a follow-up question on cross that goes one word over the line. No good lawyer I’ve ever known has ended a trial saying, “There is nothing I would have done differently.” There’s always something you doubted, always something you think you could have done better.
Did these young lawyers do a brilliant job trying their case? Who knows. I wasn’t there. Nor were any of their social media pals uttering soothing words. Even if they did try a good case, it’s likely they could have tried a better case. They should doubt themselves, because that’s how we grow and improve. There’s no trial lawyer who can’t improve.
To make this useful, however, is to be hard on yourself. We can rationalize our choices all we want, but the guilty verdict happened nonetheless. And there is no worse feeling for the lawyer who gives a damn than to hear that one-word verdict. You stand there, your client standing next to you, the jury foreman standing on the other side of the courtroom, reading the boilerplate until he gets to that point where one word more or less means everything. When it’s one word less, it’s like a punch to the gut. Mind you, it’s worse for the defendant, but that’s a different issue.
Is it helpful to take to social media to be surrounded by the good wishes and warm words of your twitter friends, who know absolutely nothing about your skills as a lawyer or the choices you made a trial that ultimately ended with a guilty verdict? Yes, of course it is. On trial, it’s one lawyer against the system. The other team has the resources of the DA’s office, a cop army, a genial judge and the good will of the citizens on the jury, who all know in their hearts that they need the cops more than they need your client. To stand up in a courtroom and fight for a defendant is to take the gravest risk a lawyer can take, to stand there existentially naked but ready to take on the system.
It takes guts to try a case, and anybody who has the guts to make the fight has earned a day of feeling like shit, defeated and in need of some comfort. That they get it from social media is fine, maybe even good, as one takes comfort wherever one finds it.
But there are two things to bear in mind, even as you bask in the kindness of strangers. First, you might not have tried the best case ever, and you should engage in some serious self-assessment about what you could have done better. The comforting words are just that, not a meaningful critique of your trial chops. This doesn’t make you a bad person, or even a bad lawyer, but just a trial lawyer like every other trial lawyer. You (we) can always do better.
The second thing to remember is that you only get one day to indulge your feeling like crap. Guilty verdicts happen, and they happen even when you try a great case, and even if you could have tried the case even better. They happen. If one verdict breaks your spirit, this job isn’t for you. Criminal defense lawyers get punched all the time, and taking a punch is what we do.
You’ve earned your day to feel bad, defeated and broken, but there will be another defendant, and another after him, who needs you at your best, at your toughest, to stand next to him and do it all over again. Allow yourself one day to feel like crap, but then shake it off and gird your loins for the next one. As bad as you may feel, there’s a defendant who needs you and you can’t do your best for him when you’re feeling all sad for yourself. This is the life we chose.