One Day To Feel Bad

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.

14 thoughts on “One Day To Feel Bad

  1. Richard Kopf

    SHG,

    Every young CDL should read this post. The one-day rule is a good one, and, I might add, an old one. In fact, it applies to civil trial lawyers (the few who really try cases to juries) as well.

    These young lawyers should understand that the one-day rule is not about them. It is about the next client. He or she (and any pronoun that otherwise applies) needs you, young lawyer, at your best and not wallowing in self-pity. For one day, go home and kiss the dog and beat the wife or whatever else will allow you to be at your best the next day. But, fucking focus, it is not ever about you.

    All the best.

    RGK

    1. SHG Post author

      This is hardly a new idea, but for those lawyers for whom experience is something to be ignored, if not shunned, it’s worthwhile to restate the obvious. Then again, it’s not as old an idea as that joke.

  2. Lee Keller King

    I would suggest that every civil trial lawyer who has tried a reasonable number of cases will also have times when he thought he should have won, but he didn’t. And vice versa. As you say, juries are fickle. It goes with the territory. So you think about what you could have done better or, make adjustments for the next time, and move on.

    1. SHG Post author

      Does a civil trial loss have the same kick as a crim trial loss? I’ve never lost a civil trial (not that I’ve done many), so I don’t know.

      1. Lee Keller King

        That’s a good question that I don’t think I can answer because I’ve never done a criminal trial. I think it depends, to some degree, on what the stakes are.

      2. B. McLeod

        It depends on the civil and criminal trials one compares. I have lost some of each over the decades. Loss of a civil case with major stakes (child custody, coverage for a critical medical procedure, or large sums of money) can have consequences as life-altering for the client as a serious felony conviction. On the criminal side, I never attempted to defend a murder case, but I saw the impact on a colleague who lost one of those three times for a client he believed to be innocent. The client eventually died in prison, and my colleague never got over second-guessing himself about that case.

      3. Steve Magas

        I tried a case as an assistant special prosecutor & lost a 2 week bench trial to a pro se criminal defendant and that case didn’t have the kick that losing a civil trial does… although “losing” is a different animal in a civil case b/c it’s only money and, often, “losing” means not winning as much as you wanted.

        As a lawyer who lives by the contingency fee these days, losing a civil trial has a particularly pungent odor if I’ve spent 100s of hours over a 3+ years and my fee is zero and I’ll probably also eat the expenses…That hasn’t happened in 25 yrs or so but even then, I can’t imagine that losing a civil trial has anywhere near the impact on counsel that losing a criminal trial does… especially if it was a criminal trial you really felt you should have won.

        Of course, after 35+ yrs I have learned to pick the contingent fee winners on Day 1 a LOT better than I did as a 25 yr old newbie. As a young lawyer I had more poor trial results b/c I didn’t figure out what made a case “good” or “not so good” until I enjoyed the pains and penalties of trial experience… So I suppose I SHOULD win cases I try these days…

        I don’t know how criminal lawyers work – but I assume that most lose a fair number of cases and it’s typically all or nothing? I once had a civil jury award 1/3 of what I asked for. They asked the court for police protection to get to their cars b/c they thought my [rough looking] clients would come after them in the parking lot…turns out 1/3 fo what I asked for was 3x the pre-trial offer and my guys were pretty happy… As a civil defense lawyer, I “lost” a trial when the jury awarded $600K against my client, but reduced it by 45% for comparative negligence… however, since the plaintiff refused to take less than $1.0 M, this verdict was a “Win” since it was less than our pre-trial offer… so “losing” is in the eye of the beholder sometimes…

        But bottom line – NO- losing a civil trial can’t possibly have the kick of losing a criminal trial, no matter HOW invested you are in the civil case… losing a battle to preserve a client’s freedom is far far worse than losing some money battle…

        1. SHG Post author

          It’s not always all of nothing. We have our own version of splitting the baby, when you beat the top count but get a guilty on a lesser, but that’s sometimes considered a win given the facts. Biggest different is that we don’t usually get to pick our cases so we only take winners, but take our clients as they come, and if they want to go to trial despite our advice, that’s what we do.

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