Losing a big case: How to recover, regroup and recharge

Your case was headline news when it was committed, dominating the media cycle for several days. Now, a year later, after intensive investigation and pretrial litigation, jury selection sparks a flurry of renewed media interest, bringing your case back into the spotlight, energizing you and your team as you head into battle. After a challenging few weeks in court, however, the verdict comes in--and it is not in your favor. Unless you have been there, sitting in court with your heart pounding as the verdict is read, it is difficult to understand the intensity of emotions involved. Yet because trial work involves both victory and loss, lawyers are wise to anticipate and understand how to process the emotional toll of loss, both personally and professionally. There are ways to endure the aftermath of loss effectively and ethically, with poise and professionalism, incorporating lessons learned to confidently move forward.

Objective review of subjective performance

Similar to loss in the sporting arena, when the courtroom is your playing field, we look back to re-evaluate the plays. From missed objections, to questions you neglected or forgot to ask your witnesses, to missed opportunities to make specific arguments, there are plenty of opportunities to engage in post-defeat analysis. Yet many of these observations are relevant to shoring up the next case, including strategies to incorporate post-verdict observations. They include:

 Identifying precise points of evidentiary weakness, from authentication to argument.

 Incorporating personal and collaborative assistance to objectively assess the reasons for the loss.

 Reviewing strategy and tactics related to witnesses and physical evidence with an eye toward reformulating case presentation.

 Thoughtfully incorporating feedback from judges, juries and peers to transform the loss into a winning strategy for the next trial.

Yet because many attorneys are notorious for being our own worst critics, we should remember the importance of soliciting an objective review of our subjective performance evaluation. Friends, colleagues, family (your home-based "focus group") and loved ones can assist in impartial, nonjudgmental, respectful analysis of your case presentation, even avenues of argument that may not have resonated with specific members of the jury, considering both content and context.

Professional rules for processing professional defeat

Recovering from a courtroom loss may involve examining which professional rules might be applicable to your case presentation as well as that of your adversary. Beginning the evaluation of a loss, lawyers (and clients) likely turn first to rule 1.1 Competence, mandating that lawyers refrain from "intentionally, recklessly, with gross negligence, or repeatedly" failing to competently perform legal services. Related to competence is rule 1.3 Diligence, requiring lawyers to refrain from "intentionally, repeatedly, recklessly or with gross negligence" failing to exercise reasonable diligence in representing clients. Rule 1.2 Scope of Representation and Allocation of Authority explains that lawyers shall honor a client's decisions regarding the objectives of representation and, as required by rule 1.4 Communication, reasonably consult with clients regarding the means of pursing such objectives; rule 1.2 Comment [1] clarifies that although the client has the ultimate authority to control the purposes of legal representation, this role operates "within the limits imposed by law and the lawyer's professional obligations."

Depending on the public interest surrounding the parties or issues involved, post-case analysis may also involve proficiency and professionalism in discussing the case with the press and public. As an example, ABA Standard 4-7.10, Comments by Defense Counsel After Verdict or Ruling, states that a defense attorney may publicly express "respectful disagreement with an adverse court ruling or jury verdict" among other permissible statements, he or she "should refrain from public criticism of any participant," and ensure any public comments post-verdict or ruling should be "respectful of the legal system and process."

Although there are a variety of other professional rules and guidelines that may be discussed when processing a loss and evaluating potential changes in case strategy moving forward, compliance with professional standards is equally relevant after a major court victory, as they govern a lawyer's performance and behavior regardless of outcome.

Resilience sparks perseverance

Taken in stride, professional defeats are valuable opportunities to learn and grow, both personally and professionally. Recovery involves both professional review and personal self-care, including a period of rest, to prompt emotional resilience and revival. Mental and physical health-boosting ideas may include a plan to retire early the night after the loss to enjoy the first good night of sleep you may have had since voir dire, and blocking out time for the following weekend to actually do something you enjoy. Because whether your passion is hiking, fishing or reading, taking the time to recapture the things you enjoy, both alone and with family, friends or your faith community, can improve mental health, happiness and hope--which can facilitate a healthy recovery for you to confidently move forward to the next case.