I know a lot about failure, and probably most, if not all, dinosaurs lawyers are also well acquainted with it. We either win or lose the motion; we either win or lose the trial; we either win or lose on appeal; we snag or don’t snag the prospective client; we keep or lose the existing client. The client takes the chances, but we take the lumps if the outcome is not what the client expected.
Sometimes our failures are very private; sometimes our failures are very public, spread all over broadcast and social media, or that antiquated relic, the newspaper. But, in the most cases, the sting of publicity doesn’t last more than a few minutes as the world goes on to the “next big thing,” whatever that might be.
I have always been amazed (and not a little incredulous) when lawyers say that they have never lost a case. (How many have they tried?) As one wag once said, and I’m paraphrasing here, “if you’re not losing cases, it’s because you’re not trying them.” Right.
I am a huge Cubs fan and avidly read the standings every day. I wonder, with all the pressure to get and keep the business — to win the motions, win the trials, win the appeals — whether there should be standings for lawyers. Why not? We rate everything. But, you say, lawyers are already rated on Avvo, Yelp, Martindale, and other places. Why add to what already exists?
These ratings would be different. They would be composed of won-loss records, just like in sports, and since lawyering can be seen and is often seen as an adversarial “game,” at least in the minds of some, there could be teams or leagues, just as there are in sports. They could be set up in any of a number of different ways: pitting Biglaw firms against one another, non-Biglaw firms against each other, by geography, types of cases, and so on. Design would be only limited by imagination and any constraints imposed by ethical rules. Lawyers could show their won-loss records for motions won and lost and for trials. You get the picture. I’m not going to get into the weeds of detail here, but we can stipulate that our profession takes Vince Lombardi’s rule to heart that winning isn’t everything, it’s the only thing.
I disagree. Just because you haven’t won the motion or won the trial doesn’t mean you’ve failed. In fact, oftentimes, it’s just the reverse. An example: you told the client repeatedly that if she took the case to trial, she was going to lose. She ignored your advice, went to trial, and guess what? She lost. You didn’t fail because you gave her the right advice, but she ignored it. She failed, not you. But we beat ourselves up for things that are out of our control, just like the rainstorm that halted the seventh game of the 2016 World Series and allowed the Cubs to scamper to its first World Series win in 108 years (and no, I was not there in 1908.)
What has prompted my musings about failure was an article in the New York Times about failure. Talking about failure is learning what went wrong and how to do better next time. The won-loss records in the box scores show publicly how the teams are doing. We are loathe to talk about how we have failed, thinking that it’s not only bad for business, but a character defect as well. (Any connection between this and increased rates of depression and substance abuse in our profession?)
The article talks about three kinds of failure: preventable, complex, and intelligent.
The first one needs no explanation. The second, “complex,” is when you have knowledge, the policies, and procedures, but internal and/or external factors combine and conspire to preclude success. Example: the jury, even after hearing all the evidence and the jury instructions, all of which seem to favor your client, engages in jury nullification, so to speak, and returns a verdict for the other side. You’ve done everything you could, the facts and the law were both in your favor and you still lost. You are at a loss to explain what happened.
The last and third, “intelligent,” is working in uncharted territory or working in areas where expertise and experience are limited because the area is so new. This is the classic situation in which no one wants to reinvent the wheel, but without talking about what didn’t work, what failed, we keep reinventing that wheel and don’t move beyond that.
A good thing is the willingness of some people to talk about failure in positive ways — to be transparent about what went wrong, what can we learn from it, and how we fix it going forward. The Museum of Failure is full of ideas and products that bombed. We bomb too, every day, but I doubt that many of us have ever written CVs of our failures.
What’s important is that we talk about our failures, not just our successes. If we only talk about the latter, then people are reluctant to share the experiences of failure, fearful of being seen as weak or stupid or (insert adjective of choice), but that’s how we learn. Not from successes, but from failures, yet our egos stifle our candor.
For newer lawyers, especially those on their own, it’s vital to learn from those of us who have stubbed our toes repeatedly over the years. Don’t be bashful. Ask about our failures; they will help you understand yours and how to succeed next time. You have long careers ahead of you and many times at the plate.
Failure Will Probably Always Be Part Of Your Life As A Lawyer curated from Above the Law
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