Litigators: what do you do to cope with a loss?

[TheBadLawyer]

I have a decision coming and I'm feeling some anxiety about it. Whether you're crim or civil, what are your post-litigation decision activities to keep from ruminating about the decision on a loop?

[JackyC]

[JackyC]

It’s tough. I’ve had quite a few and there really is nothing that will take my mind off a bad decision. Doubly so when the decision is reported and all your colleagues will likely be reading it or at least skimming it. The best I can do is grab a beer with a good friend or two to talk it over and realize that they’ll be another day and it’s all part of the game.

After that, I generally go home, reread the decision a dozen or so more times and get told by my wife that I spend too much time thinking about work. I’ll laugh and tell her that she’s right and we’ll go walk the dog and maybe see a movie.

I’ll then go to bed where I’ll reread the decision another half dozen times then try to sleep as I rethink what I could have done differently in my head into the wee hours of the night.

Then it’s on to the next case. Oh what a life we lead.

 

[Jaggers]

I'm on Canlii with decisions about 40 times, and the plan isn't what you'll say after the decision, it's what you'll say before it.

[TheBadLawyer]

3 hours ago, JackyC said:

It’s tough. I’ve had quite a few and there really is nothing that will take my mind off a bad decision. Doubly so when the decision is reported and all your colleagues will likely be reading it or at least skimming it. The best I can do is grab a beer with a good friend or two to talk it over and realize that they’ll be another day and it’s all part of the game.

After that, I generally go home, reread the decision a dozen or so more times and get told by my wife that I spend too much time thinking about work. I’ll laugh and tell her that she’s right and we’ll go walk the dog and maybe see a movie.

I’ll then go to bed where I’ll reread the decision another half dozen times then try to sleep as I rethink what I could have done differently in my head into the wee hours of the night.

Then it’s on to the next case. Oh what a life we lead.

 

It's always fun how the losses seem more likely to be published than the wins, eh?

I keep trying to tell myself to be more process-focused and less outcome-focused. We can't control outcomes - we can only control the thought we put into our theory of the case, the preparation and thoroughness of our questions, the preparation of our client to respond to questions, etc. I'm trying to keep both wins and losses in perspective. But fuck me, is it ever hard...

[Mbu1]

8 hours ago, JackyC said:

It’s tough. I’ve had quite a few and there really is nothing that will take my mind off a bad decision. Doubly so when the decision is reported and all your colleagues will likely be reading it or at least skimming it. The best I can do is grab a beer with a good friend or two to talk it over and realize that they’ll be another day and it’s all part of the game.

After that, I generally go home, reread the decision a dozen or so more times and get told by my wife that I spend too much time thinking about work. I’ll laugh and tell her that she’s right and we’ll go walk the dog and maybe see a movie.

I’ll then go to bed where I’ll reread the decision another half dozen times then try to sleep as I rethink what I could have done differently in my head into the wee hours of the night.

Then it’s on to the next case. Oh what a life we lead.

 

I would understand how you feel if you only accepted cases that you were almost certain to win. If so, I understand. But if, for example, you work for a law firm that has big clients that you have to defend no matter what, why so much disappointment? Presumably you have to take all their cases, some weaker than others. Or is it the fact that, as a litigator, in order to act competently in a given case, you first have to convince yourself that your client is right - and escaping that mindset after the decision is rendered is tough? 

Edited April 7, 2023 by Mbu1

[JackyC]

50 minutes ago, Mbu1 said:

 Or is it the fact that, as a litigator, in order to act competently in a given case, you first have to convince yourself that your client is right - and escaping that mindset after the decision is rendered is tough? 

For me it’s this. I work as a Crown so all cases need to be run if the thresholds for proceeding in our policy are met (public interest/prospect of conviction/any other criteria that applies to that specific type of charge). That said, these thresholds for the most part ensure that cases that go to trial deserve to.

It’s more so that when you go to trial on the cases, at least most of the time, it’s hard to switch off in your head that the case is provable and that you can be the one to do it - if only you ask the right questions, put in the right amount of preparation, make the right motions, etc.

I say the above with the caveat that the Crown’s job is to search for justice and not wins. There are loses I can forget about fairly quickly, but for a fair amount of cases it’s back to the process I described in my post above (with maybe some consolation MacDonald’s sundaes thrown in).

 

 

[Mbu1]

34 minutes ago, JackyC said:

For me it’s this. I work as a Crown so all cases need to be run if the thresholds for proceeding in our policy are met (public interest/prospect of conviction/any other criteria that applies to that specific type of charge). That said, these thresholds for the most part ensure that cases that go to trial deserve to.

It’s more so that when you go to trial on the cases, at least most of the time, it’s hard to switch off in your head that the case is provable and that you can be the one to do it - if only you ask the right questions, put in the right amount of preparation, make the right motions, etc.

I say the above with the caveat that the Crown’s job is to search for justice and not wins. There are loses I can forget about fairly quickly, but for a fair amount of cases it’s back to the process I described in my post above (with maybe some consolation MacDonald’s sundaes thrown in).

 

 

Thanks for your explanation. Makes sense. I wrongly assumed you worked civil litigation at a mid-size or biglaw firm. I can understand how as a Crown it gets frustrating especially with the lack of preparation ya'll have. 

[Jaggers]

The reality these days is that if a case hasn't settled, there is virtually no way it is a slam dunk either way. Have those tough conversations with your client in advance about likelihood of success, what it looks like and hinges on, etc., and it makes dealing with losses easier.

[Hegdis]

Well, one of my CanLii cases includes a complete judicial misunderstanding of my argument that I was able to clear up on the record but not in the decision that got reported.
 

So for anyone out there who needs to know they aren’t alone, I look like an idiot who doesn’t understand basic Charter law on Canlii, and every time I think about it I grind my teeth. 
 

As for decisions that don’t go your way, those aren’t necessarily bad decisions. They just aren’t a success. I have no trouble accepting a decision that doesn’t agree with my position. I have tremendous difficulty, still, letting go of a decision that I think is wrongly decided - either on a misinterpretation of the law or an incorrect accounting of the facts. 

[AvenattiBugatti]

I think on the flip side, we often over-inflate our contributions in a case that we won. Frankly, I think many lawyers win just because they put in enough satisfactory work, but the judge feels that the equities lie with their client. The point is, either way, don't overestimate your influence on the result. Think more about what you can control... not the facts, the instructions, or the law, but your mastery of essential lawyering skills. Ground yourself in something stable, and don't obsess over some impossible ideal. 

Edited April 8, 2023 by AvenattiBugatti

[t3ctonics]

On 4/7/2023 at 7:03 AM, Jaggers said:

The reality these days is that if a case hasn't settled, there is virtually no way it is a slam dunk either way. Have those tough conversations with your client in advance about likelihood of success, what it looks like and hinges on, etc., and it makes dealing with losses easier.

This is the mentality I've always taken. If a case is easy either way it will most likely settle. 

I also had a mentor tell me early on that if you're winning all your cases, you're not taking aggressive enough positions. If you only proceed with cases that you think are sure wins, that means you're settling winnable cases. You don't want to be unreasonable, and the client's needs/wants come first, but don't be afraid to lose every now and then. It's part of working in an adversarial process.

On 4/7/2023 at 7:14 AM, Hegdis said:

Well, one of my CanLii cases includes a complete judicial misunderstanding of my argument that I was able to clear up on the record but not in the decision that got reported.
 

So for anyone out there who needs to know they aren’t alone, I look like an idiot who doesn’t understand basic Charter law on Canlii, and every time I think about it I grind my teeth. 
 

As for decisions that don’t go your way, those aren’t necessarily bad decisions. They just aren’t a success. I have no trouble accepting a decision that doesn’t agree with my position. I have tremendous difficulty, still, letting go of a decision that I think is wrongly decided - either on a misinterpretation of the law or an incorrect accounting of the facts. 

I've got a similar case. In my first reported decision the judge misunderstood the evidence on an issue even though the parties agreed on those facts, and wrote a pretty scathing decision that called my argument inappropriate and misleading. It would have been a very easy appeal on the record, but it just wasn't worth it to the client to take the time even though we were willing to do it for free. So that sits unchallenged on CanLII for all time now. It was a minor chambers decision on an issue that only resulted in some delay for my client (and the costs of the application) but it was on such a basic point that it's embarrassing for people to think I made that error.

The worst part is, the judge asked me a question on a point of law that (in retrospect) demonstrated his misapprehension of the facts because it would only be material if the facts were different, but I didn't make the connection in the moment and just answered directly. I could have added some kind of qualification like "but that would only affect the outcome if X, and as the uncontested affidavit evidence shows, Y." But I was too green to be on the lookout for things like that - 6 months post-call I had a hard enough time just getting through my speaking notes.

[Bob Jones]

On 4/2/2023 at 2:30 PM, TheBadLawyer said:

I have a decision coming and I'm feeling some anxiety about it. Whether you're crim or civil, what are your post-litigation decision activities to keep from ruminating about the decision on a loop?

It’s just a job. Someone is going to win and by default someone will lose. Do the best you can and move on to the next one. 

[atg95]

You get used to it. As long as you did your duty and represented your client well in Court, the decision is up to the judge and there is a lot of leeway in most cases. If it goes against you, it is worth reading carefully to see if an appeal is feasible and to see if they misunderstood something about your argument or the facts. If they did misunderstand and you think that it is your fault that happened, learn from it to do better next time. If you explained the facts/law properly and they simply forgot about it in the months afterward (or intentionally did not include your answer to that key point in the reasons) then that is something beyond your control in terms of improving your advocacy skills.

What I find annoying is the situation of losing a case due to 'hard facts make bad law' when it is a written decision, because it has an impact beyond that case. I'ld prefer they simply give them an order with oral reasons, rather than a written decision. 

Edited May 4, 2023 by atg95