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You Can't Win Them All

I hope that post title doesn’t sound flip. It’s not intended that way at all. I might have used the title, “The Agony of Defeat,” if my friend, Scott Greenfield, hadn’t already done so.

That post, and the one Gamso wrote after reading it, are both about losing at trial, and how criminal defense attorneys (try to) deal with it.

Scott didn’t reveal this information in his post — knowing Scott he probably figured it was not his place to do so — but the lawyer he was speaking about was me.

I was the one who, after the verdict, went home to a drink (or three) — and a giant bag of Doritos which I completely consumed.

Dealing with losing isn’t something I’ve been very good at doing. As Scott wrote:

He was crushed. Every decent trial lawyer takes a guilty verdict personally. Forget that we weren’t there when events happened and the evidence gathered, the statements made and the fingers pointed. It all happened without us, and we had no say in how strong a case it was. We don’t show up until all the stars are aligned, and then it’s our job to realign them to the extent possible.

An outsider might say the defendant lost his case because of the things he did. A criminal defense lawyer says he lost the case because of the things he didn’t do. He didn’t find the way to beat it.

Nevermind one of the major surprises Scott[1] mentioned occurring — that evidence belonging to the complaining witness was found in my client’s property bag from the jail on the third day of trial; the first day any witness testified — I really did feel that I had a chance at “winning” and I really did blame myself that I “didn’t find the way to beat it.”

A few years ago, when I was a newer attorney, such losses quite literally tore my heart up: I had my first — and I’m hoping my only — heart attack at the age of 53. And while I don’t think I’ll ever be able to say that losing doesn’t bother me, that my heart has become hard enough to act as if the loss doesn’t hurt, friends like Scott have helped me begin to understand that I will be a more effective attorney if I quit trying to go over the past for any reason other than to learn something.

Agonizing won’t make me a better lawyer.

The truth is — and I don’t always think this of myself, but this time in particular I know it’s true — I did the best I could. Co-counsel certainly thought so. At one point, the judge essentially said so, and the prosecutor even said it after the verdict came in. No, agonizing will do no good.

Did I learn something? Of course. One of the things I’ve discovered about being a lawyer is that there is no end-point to the learning. I learn something with every event, every client, every day. I’m already taking what I learned from that case and applying it to cases that are not yet done, those for which trial is headed towards me like a roaring lion hoping to cower — and devour — me.[2]

But here’s the main thing I learned from this trial, more than from any prior trials I’ve had, or in which I’ve served a part: the things I’ve learned have added to my strength. What’s that old saying? What doesn’t kill you only makes you stronger? My recovery time after a loss is faster. My heart still aches a little, and there is still some second-guessing. But more of my energy is turned towards culling whatever lesson I can from the experience, and turning to the next fight.

I’ve had a pretty lucky year so far: more dismissals than I can count(another one this morning, by the way), and, when the cases were solid against my clients, and they wanted me to do something to minimize the damage taking a plea was going to do to their lives, I’ve been pretty good at getting something that makes them happy. Even when I can’t, my clients know I have given my best.

In this case — though the loss still hurt — I had my drink (or three), ate my giant bag of Doritos (something I’ve only done three times since my heart attack, for obvious reasons), moped my way to bed to sleep it off, then got up the next morning, brushed myself off, showered, look myself in the mirror and said, “back in the saddle!” before heading off to court.

  1. I owe Scott a tremendous thank-you for helping me put these things in perspective, and providing his input throughout the trial. I didn’t count all the hours of his time that he gave me, but I know for a fact that at least two of the phone calls lasted an hour each. [↩]
  2. One specific benefit was that this is the first trial where I’ve tried to use a computer-based trial binder. I’m actually excited to not only do that again, but improve on how it works! [↩]