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Thursday, May 13, 2021

Losing a Court Case Sucks

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Losing a Court CaseThe title is a little self-evident here.  Does anyone want to argue that losing a Court case is a good feeling?  As highly motivated, slightly egotistical, and generally well informed people, lawyers hate losing a Court case.  It’s especially annoying when you felt you had a persuasive argument.

I had a couple of experiences recently which have reminded me that in every piece of litigation, there is always one side who is more successful than the other.

Losing a Court Case – The Aftermath

If you lose you get the following wonderful tasks to complete:

  • you get to tell your client, if they weren’t there to watch it unfold.  This is generally a pretty unpleasant experience and one that is best approached after taking a deep breath.  If you are in litigation and you haven’t done this yet, then you will.  Good communication skills and relationship will help you here.
  • if applicable, you get to tell your supervisor or partner that you lost the case.  This is ordinarily a joy, as your supervisor looks to go over in excruciating detail all of the arguments they felt you should have put to the Court
  • paying the other side’s costs (ordinarily, at least) – this will often come from your client, and hopefully you explained to them the risks of this going into the hearing in the first place.
  • figuring out what to bill your own client for the experience.  As draconian as people think lawyers are in this regard, personally I always struggle with the concept of issuing a large bill for a significant loss.  I know, intellectually, that losing the Court case was always a factor – but I don’t have to feel good about it.

The Benefits of Losing a Court Case

There aren’t really that many, but I’m going to take a stab at putting in a few options here in the hope that they will help you should you experience this in your own practice any time:

  • It’s always a learning experience.  This is, of course, completely trite.  However there is no loss in Court from which you cannot learn some kind of lesson.  Maybe it’s a lesson about that Judge, the other side, your client, your advocacy skills, preparation issues, the relevance (or irrelevance) of case law to a particular argument.  There are a myriad of things to learn, even if the most irrational loss.
  • In an adversarial Court system, there is normally a “winner” and a “loser”.  If it wasn’t you and your client who lost, then it would be the other lawyer and their client.  If the case was completely clear cut, the chances are pretty good that you wouldn’t have been in Court in the first place about it.  This is a lesson well worth learning, and one which can take a few years to become accustomed to – if you can grasp it without becoming cynical, then I count it a benefit.
  • You generally get to pack up the file and make some space in your office after losing.

What to Do After Losing a Court Case

Of course losing is a bad day.  What you do next is really this depends on the scale of the loss.  In a smallish loss, I’d go for a glass of merlot.  However if it’s a big one you might need to go to Shiraz or Cab Sav.  I don’t recommend Single Malt after losing a Court case – it gets messy and expensive.

After that – pick yourself up, and get back to work.  Don’t let the experience make you cynical – it happens every day to lawyers around the world – you’re in very good company.

Happy Lawyering!


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  • This is a silly article. There’s absolutely no shame in losing a court case. Sometimes your clients insist you run cases that are likely to lose (cases with an outside chance of winning). Where there’s an issue is if you haven’t given your client a realistic view about their prospects. Telling them they are bound to win only to then lose. That’s where you need the communication skills and the good relationship. But if they are properly advised of the risk, it’s not an issue, quite common and shouldn’t leave you feeling bad in the slightest.

    • Hey Laurence. Don’t think I mentioned shame in the article, nor was the article about guilt or anything like it. I’m glad you live in a world where you can lose a case and have no emotional reaction, tell your client “see – just like I told you” and move on, but most of us don’t. Nobody likes to lose, irrespective of whether they thought they would or not. I understand the point you’re trying to make, and to some extent managing expectations up front can assist the process, but that’s only a tiny piece of a complex puzzle.

  • While I am struggling to come to terms with losing my first ever case in court today, I find that this article helps me to put things back in perspective. The only thing I am left wavering with is the communication skills and the good relationship thingy. Just how do I deal with these? It seems the hardest impediment to me most of the time would come from not exactly knowing what to say and how to say it. Would experience over time be able to solve this predicament of mine (I am not naturally spontaneous or sharp in my words and to date, my experience is just barely 3 years into this law practice). TIA, Julia.

  • I lost a case yesterday and I had made my closing subs thinking I had won. I was inconsolable and depressed and came home and just wanted to sleep. My second year of practise. I am glad I read your piece. Thank you.

  • If you haven’t lost a case, you’re not trying enough lawsuits. What doesn’t kill you makes you stronger. If you fail once, fail harder next time. Without tasting the despair of defeat, how can savor the elation of victory. Trite truisms all. Losing sucks. But hey, any litigator worth his or her alt has done it. So, buck up, buttercup. Dust yourself off and try the next one. You can’t win the lottery if you don’t buy a ticket.

    • True, if a little firmly phrased. It’s not just about dusting yourself off – reflecting on what (if anything) went “wrong” is usually worthwhile along the way. Of course you can still lose without something going wrong, but it’s worth asking the question anyway as well as getting back to work.

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