The cost of “driving to win”
Unfortunately, this drive to win at all costs leads to many problems. There is a lack of civility among lawyers.
The need to win causes rancor, nastiness and aggression among us. It often leads to something more serious. It causes clear ethical breaches such as lying, hiding documents and misleading judges, jurors and other lawyers in every effort to achieve the only acceptable result: victory.
Some people criticize our judicial system. The public and most parties to litigation are fed up with seeing lawyers constantly fighting. This is true in all areas of civil litigation, and especially in family law matters. Many people yearn for something different. They want to find a better way to resolve their differences on a win-win, not a win-lose, basis.
Furthermore, our current system of litigation causes lawyers a great deal of stress. We have the highest rate of depression of any profession. Recent polls indicate that many lawyers are not happy in their work and are feeling the burnout of constant conflict. In short, being a lawyer today is stressful.
However, many would still argue that the present justice system is serving us well. The joy and excitement of competition are what drove many of us to become trial lawyers. Is competition inherently bad? It is all right for us to enjoy the feeling of winning?
Is justice being served?
I answer these legitimate questions in the following way: if the win has produced true justice, we have every right to feel good.
Some of my most satisfying memories as a trial lawyer have been those of my victories. However, it is the other side of the coin that bothers me. I am concerned about the state of our profession and our well-being as lawyers. It is the primal fear of losing can lead us to be less than our best as lawyers and as human beings.
Many trial lawyers have such a deep-seated fear of losing that it becomes almost impossible to acknowledge that emotion. It is a dark shadow within us that we never want to face. The fear of losing is really the fear of failure. And failure is embarrassing and shameful. It brings up childhood memories that are often too overwhelming to face.
How Do We Feel When We Lose?
Angry, shamed and resentful – all negative emotions that we want to put behind us as quickly as possible. Sometimes we deal with our failures by drinking excessively, taking drugs, throwing ourselves into work, taking our feelings out on others or by withdrawing emotionally.
A loss can make us feel our lives are failures. Depression can soon follow with all of its related problems. It is no secret that the high rates of depression and suicide among lawyers is caused in part by the terrific pressure put on us by our own fear of failure and our reaction to losing.
It is impossible to be a lawyer and not experience losing. How we react to losing is important. Winston Churchill once stated, “Success is never final, failure is never fatal, courage is what counts.” (See, www.peoplesuccess.com/ success-quotes/.)
This is not a cliché. The problem that many trial lawyers have is that the fear of losing becomes so pervasive that they lose the courage to litigate the difficult case.
Atticus Finch was the heroic trial lawyer in Harper Lee’s novel, To Kill A Mockingbird. Finch represented an African-American man accused of raping a white woman in a small southern town in the early 1930s. Atticus didn’t stand a chance of winning that case, and he knew what he was up against.
However, Atticus took the case to trial and did the best job that he could do. Of course, he lost the case, but he became a hero to his client, his family and to his community because he had the courage to stand up for what he believed in.
As trial lawyers, we should fight for justice. We need to confront our fears and overcome them. We need to find the courage to take on the tough cases in order to bring justice to our world.
President Franklin D. Roosevelt, in his first inaugural address (found at http://historymatters.gmu.edu/d/5057/) told the nation that “the only thing we have to fear is fear itself.” He was right. Fear paralyzes us. It makes us timid and uncertain of our actions. A true trial lawyer is not timid and uncertain.
If we approach our cases with courage and do our best to overcome our fears, we are off to a good start. However, we must be prepared to lose. When we do lose, we must recognize that it is not defeat that makes us fail. Our refusal to see the defeat as a necessary part of learning about success makes us failures. There can never be success without failure. There can be no wins without losses. They are two sides of the same coin.
Lessons from Losing
Perseverance
To continue to grow and develop as lawyers, we must learn from our losses. An important lesson we should learn from losing is perseverance. We need to prepare to fight the next battle.
We cannot allow losing to become such a huge monster that it frightens us from trying our next tough case. Otherwise, our value as a lawyer and as a person is diminished. We must always be willing to take the next risk and try, try, try again.
Humility
Another lesson we can learn from our losses is humility. Every time we win, we get a little more full of ourselves. We think we are the best. Our ego grows, and we become more self-centered.
Humility is not a term often used to describe trial lawyers.
It is so easy to get involved in our cases that we come to believe that the “win” achieved is our win and not our client’s. We love nothing better than to preen ourselves and talk about “our” big wins.
How do you feel when you are preparing for trial? What do you visualize in your mind when you think about winning? Are you at the center of the picture? Do you hear people saying good things about you? Do you perceive the good feelings about winning as revolving around how well you, the lawyer, performed?
It is easy to fall into the “me, me, me” syndrome. What happened to the client? What about the others who worked on the case and who also deserve credit? The moment of triumph in winning can so easily inflate our narcissistic egos that we lose sight of the importance of our victories and the credit that others deserve.
When we experience a tough loss, there is none of that. Nothing deflates a ballooned ego faster than the words: “We find for the defendant and against the plaintiff.”
Compassion
A related lesson to be learned from a loss is compassion. We can’t feel much compassion for others if we have never experienced our own losses. Conversely, those who have suffered the greatest losses are usually the most compassionate. It is easy to feel compassion for others when they lose.
How often have we consoled a fellow attorney after a loss and told him or her not to take it so hard? We can empathize with that person. Our heart goes out to our colleague. Yet, when we look at our own losses, we are usually hard on ourselves. We blame ourselves and are rigidly unforgiving of our losses. We ask ourselves what we should or could have done differently and replay our mistakes in our minds. We become failures.
I have spoken to lawyers and have found self-criticism is one of the most difficult problems we have to deal with as lawyers. So, maybe it’s time for us to be a little easier on ourselves and recognize that losing isn’t the end of the world.
Some of life’s greatest lessons come from these so-called losses. Defeat is not synonymous with failure unless we allow it to be. In the long run, it is more important to accept our losses and learn from them rather than basking in the glory of our wins, from which we learn nothing.
Forgiveness
The hardest lesson of all is forgiveness. Forgiveness is a process of letting go. Releasing our feelings of resentment, anger and especially self-righteousness is not as easy as it sounds. However, it is the only way to heal the wounds of our losses. If we can forgive those individuals in our losses (clients, witnesses, judges, juries or opposing counsel), we can release our negative emotions. We can now dictate how we feel about the loss. We are in control.
However, if we choose to hang on to bitterness, anger and resentment, we cannot grow and move forward. These negative feelings will handicap our ability to act with the courage we need. This courage comes from being in touch with our deepest spiritual values, and there is nothing more powerful than this. We will then become true winners.
Conclusion
Who are the real winners and losers in our profession? Winners are not necessarily the people who win the case. Being a true winner has to do with values. Winners have integrity. Winners have courage. Winners sometimes lose cases. Losers, on the other hand, have arrogance when they win and bitterness when they lose.
Don’t be a loser!
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