Beware the "undefeated" trial lawyer

I recently spoke with a friend  from another plaintiffs' law firm about a topic that is discussed more in private than in public: losing. My friend is an excellent trial lawyer. His firm has  recently lost a couple of very large cases that were hard fought trials. We discussed the take-aways from losing; we reached the conclusion that no matter how talented a lawyer may be, no matter how prepared she is, the bottom line is that losing a jury trial is going to happen from time to time. Show me a trial lawyer who never loses and I'll show you a trial lawyer who is afraid to try the really tough cases. Almost anybody can win the easy cases. I said almost. It still takes some skill to win the so called "slam dunks."  (Naturally, there is no such thing as a slam dunk jury trial; don't let anyone tell you otherwise.)  But it takes a talented and dedicated trial lawyer to win the very difficult cases.  Just like a great athlete wants to take on the best competition, a great trial lawyer wants to take on the most difficult of cases.

Jeff Robinson,a colleague of mine at SGB, is widely regarded as one of Washington State's finest trial lawyers. He presents at seminars and  CLEs all over the country. He's the kind of speaker who draws a large audience, every time: When Jeff makes a presentation on trial skills, attorneys take note.

One thing you won't find Jeff doing is looking to pad his stellar record for trial victories. He's fine with taking on the most difficult cases, ones where others might say he has no business winning. But more often than not he does win these daunting and difficult cases. If trying the case is in the client's interest, Jeff will willingly try it, no matter how difficult an obstacle that might present.

He relishes these type of  challenges. This is how the great ones roll. They don't get great by only taking on the near sure thing cases. How does this translate in practice? When a group of similarly situated executives each come looking for their own criminal defense lawyer, and they collectively ask Jeff which of them he'd like to represent, Jeff's answer is the answer of a confident trial lawyer: "I'll take whoever is in the most trouble." This is the mindset that Jeff and his criminal defense team at SGB embrace.

I write about Jeff in this context because from him I learned this mindset.  Years ago I was fretting about a trial  I thought for sure I'd lose. I discussed this with Jeff and received words of wisdom that all trial lawyers should only be so lucky to receive. Jeff said that for the cases where you have little chance of winning, on the morning of trial, you just need to wake-up early, step outside, take a few deep breaths of the chilled air and say  Sioux leader Crazy Horse's saying: "Today is a good day to die." This doesn't mean that fear has no role in motivating us. It also doesn't mean that you should try to take these types of cases to trial. But when you are in that situation, you have to deal with it.

I did just as Jeff said. The morning of the first day of  trial I rose at 5 am, watched the sun rise over the Puget Sound, took a deep breath and prepared myself for battle. I was pushing to win, but I had already accepted that defeat might near. The process completely relaxed me. Suddenly I was not afraid that we'd likely lose. I turned my attention back towards the task at hand: putting on a first-rate jury presentation. It turns out that we managed to win. We received a verdict that was five times the highest offer the defendant had made to us. The low offer was why we tried the case in the first place. But I'm convinced that the fearless Robinson attitude played a major role in the trial.

Jeff might well have picked up his attitude from playing competitive sports at a high level. Athletes and coaches want to challenge themselves.  At least the great ones do.   Ask any college football coach if he thinks less of the SEC champion because inevitably the champion will have a loss on its record. The answer is "no." Losses make you stronger. The key, though, is to learn from them so that they are the exception. The great ones know exactly how to do this.

Like in life, with trials we learn more from losses than victories. So too with competing:  we learn more from competing than we do from sitting on the side lines.  There's a fantastic Teddy Roosevelt quote I very much like, referred to as  "The Man in the Arena." After I had played my last high school football game, my coach gave each player a frame of the quote.  It couldn't have been more appropriate:  We had won a championship the year before and hopes were high to do it again, but we never even came close.  I keep the framed quote  at my desk and look at it every day.

The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at best knows in the end the triumph of high achievement, and who at worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who  know neither victory nor defeat.

So thank you Mr. Robinson (and President Roosevelt) for that powerful reminder. And to those who have suffered a loss at trial, chin up.  There will be another day to fight. That, my friends, I promise you.