Across the country, baseball stadiums are once again replacing snow with warm bodies. The fact that I have noticed this turn of events is probably more remarkable than the fact that once again a long winter has departed, since most people would not consider me a sports enthusiast. However, over time I have learned to appreciate the parallels of sports and life. In particular, the agony of losing a game in sports has given me perspective on the tragedy of losing in the law.
Losing is a common phenomenon in sports. In fact, you could say that it happens 50 percent of the time. Most sporting events involve one winner, and one loser – or at least one winner, and several losers. The law has a similar phenomenon, but, in my experience, it’s not one that lawyers like to talk about much.
It’s much easier to talk about the big case you won last month, last year, or last decade, than it is to talk about a big loss. Meanwhile, the failures that lawyers shoulder can quietly eat away at us if we let them. Athletes can relate. As Andre Agassi said after winning a Grand slam,
I know something that very few people on earth are permitted to know. A win doesn’t feel as good as a loss feels bad, and the good feeling doesn’t last as long as the bad. Not even close.
Most lawyers I know come with a “competition chip” that makes them thrive on competition and battle. As Vince Lombardi said, “If winning isn’t everything, why do they keep score?” I’ve often observed that many lawyers have what I like to call a “healthy ego.” This makes losing feel particularly tough. When we lose, it stings. “Winning” is the focus for lawyers and athletes alike. And I don’t mean the Charlie Sheen kind of “winning” – whatever that is.
A lawyer I know maintains that there is a 24-hour window for wound-licking after a big loss. After that, he always said, you have to pick up and move on. In those 24 hours, you play every moment of your trial or hearing over in your head. You think about what you could have done differently, better, or not done at all. You analyze the plays. You make notes in your play book. You think about how the ref – well, judge – must have forgotten his or her glasses (or mind) that day.
Sometimes in legal practice we take shots we know are probably not going to go far. The reason could be to preserve the record for appeal, or it’s a strategic decision, or other times we try something out without knowing for sure whether it’s going to work or not.
Taking risks requires confidence. And every jury trial is a risk. So we need to be careful that losing trials does not make us gun shy. Wayne Gretzky noted, “You miss 100 percent of the shots you never take.”
This is one of the reasons why there is a 24-hour cap on trial grievance. If you think it over too much, you stand the chance of compromising that “healthy ego.” Lack of confidence increases the chance of the dreaded choke. There is no sympathy for choking when you are a lawyer or a major league baseball player.
While some people ruminate over losing, others react to loss on the other side of the spectrum. You could lose a case and then refuse to really think about your case at all. The upside of this strategy is that you coddle your “healthy ego” by refusing to believe your actions had anything to do with the jury or judge’s failure to see your side. It’s a very comfortable way to react to loss. The downside of that strategy is obvious from an outside perspective – there is a lost opportunity of reflection. Such reflection may lead to improvement, awareness, and better lawyering. Losing helps you realize the importance of your work, and hopefully, helps eliminate mistakes and sharpens skills.
Losing, and recovering from losing, is easier said than done. After all, “A tough day at the office is even tougher when your office contains spectator seating.” One way to take the sting out of losing this time of the year is to go get a ball park frank, a cold beverage, cheer for your home town team, and enjoy someone else losing.
© 2011 under analysis LLC. under analysis is a nationally syndicated column of the Levison Group. Comments or criticisms about this column may be sent via email to comments@Levisongroup.com