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Winning or Losing… “fagetaboutit”

March 5, 2013

“Fagetaboutit”.  It is not a lawyer’s job to “win”, anything.  And, no attorney should ever fear the simple act of “losing”.  Not a trial, not a hearing, no arbitration loss and certainly, no mediation “failure”.

If you are one of those who measure everything you do in these simplest of terms of winning or losing, you will likely have a very short litigation career.  Worse, you will never achieve the satisfaction that those who understand the realities of what good litigators really do, find.

Although difficult for many in our profession to accept, much less the non-informed public, the lawyer’s responsibility, in prosecuting or defending any claim is NOT to win or lose.  It is simply to present the maximum, ethical  legal effort that can be made to insure that a claim or defense is appropriately and fully considered by those who must make the final decision.

Lawyers do not get to make any final decision.  Except, maybe, to accept the challenge of any representation.  They aid others to make the proper final decision.

Despite the nature of the American jurisprudence system that require attorneys to “contest” claims and charges to insure their validity, it was never intended that the outcome of any phase of any litigation or dispute should rest solely upon the shoulders of the legal representative.

Even the knights of old England, the foundation of our legal system, who physically fought, literally, to “find” justice, were not charged with winning.  In the end of each mortal contest, it was presumed that it was God who made any final decision about the combat, not the knight!

And, yet, today, too many of our profession still equate the outcome of too many legal matters solely upon their role of counsel for one side or the other.

If you think about it, isn’t it somewhat egotistic to think that one person’s actions or efforts, alone, can really overcome actual facts or law, or both, of any particular dispute?  Client’s causes, claims or defenses, are reviewed and rejected, everyday by one group of lawyers, only to be accepted by others, the next day.  Wouldn’t that suggest that those facts and that law, at least in the opinions of others, weighed against success from the beginning?

Litigators (and mediators) often cite the popular, “if you tried the case ten times, what would be your outcomes?”, test.  The clear import of this “test” is that if you try a perfect case, over and over, you will still clearly get different outcomes every time, despite your personal input!

The fact that different judges and different juries can totally nullify both fact and law in any matter, should also permit you to see the weakness in just what real ultimate effect the best attorney can really have in any specific contest.

And, too many mediation participants often complain, someone ” …didn’t get it done”.  The implication:  the lawyers, the mediator, ….someone, didn’t “succeed” at their mediation tasks; they didn’t win!  Nothing could be further from the truth.  The fact is, every human associated with the mediation may well have performed flawlessly and still have not found resolution at mediation.

Don’t get me wrong.  I am not suggesting that an attorney’s efforts cannot effect any given issue  or even the contest itself.  I am not inferring that attorney’s comparable efforts cannot produce different outcomes.  Comparable better effort can impact some outcomes.  And, clearly, any lawyer owes his/her best efforts to any issue of any client.

But, once you have given your best efforts, truly your best efforts, you must recognize that ultimately your efforts cannot change either the facts of your issue or the law to be applied to those facts.  And, of course, you have no direct control over the final choice of your decision maker or their decision.

In short, in the end, regardless of your best efforts, after offering them, you can do no more.

The answer?  If you are going to be successful in the practice of law, long-term, your only real professional target should/must be solely the admiration and respect of your opposition.  It is by your peers, your opposition, that your efforts, including your professionalism, will be truly judged.

If you are in or planning a career in law, particularly in contested matters, keep this simple “professional trial lawyer’s goal” in mind.  I didn’t make it up.  It was “revealed” to me as I began my own initial journey as a trial lawyer, long ago, by another who had already traveled the long road ahead of me.  And, he had done it well.

I now reveal it to you.

If you have truly fully prepared for,  well and wisely presented your client’s position and intelligently negotiated your client’s efforts at mediation, particularly at mediation, you have done all that can be professionally expected of you.  In the end, in mediation, you control only 50% of whether or not your client achieves “success by complete resolution” mediation.

In any other contested setting, if your client must “lose” his claim or his “defense”, at the least your personal and professional goal must be to solely make sure the opposition knows it had nothing to do with your representation.  Only the fact or the law or both, that YOU could not overcome simply with your exceptional preparation and presentation effort.

In short, your goal is for every prevailing opposition to truly believe that with the efforts you made, they were “really lucky, this time“.

Then, “fagetaboutit” , win or loss, and move on to your next, best effort.  You will enjoy your practice far more by simply gaining the respect of your peers than keeping score upon your wins and losses.  And, you will always sleep well knowing your gave it your all.

Dan, from Orlando, Florida.

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