Lawyers Should More Often Talk About Their Failures

Lawyers, like pretty much everyone else, do not like to discuss their defeats. When attorneys speak to one another, they usually discuss their victories in order to promote themselves in front of colleagues. However, even the best lawyers lose sometimes, especially when either the law, the facts, or both are against them. Losing can be a valuable learning experience for lawyers, and attorneys should discuss their defeats more frequently since it can be a valuable learning experience for attorneys.

I learned much about the legal profession from defeats that law firms at which I worked endured earlier in my legal career. Shortly after graduating from law school, I worked at a Biglaw shop performing mostly grunt work for some huge litigation matters. The firm took on a pro bono case for a charity they routinely assisted. Our adversary was a sloppy solo practitioner who was unprepared for court and drafted papers that were so bad, they might as well have been written in crayon (this was an old expression we used to say about poorly drafted documents).

In any event, my law firm diligently represented the client at trial and were more polished, prepared, and professional than our adversary. The adversary still won the case since the law and facts were all on his side. The appeal was prosecuted by one of the top lawyers in the country, and this impressive litigator was not able to save the case from being decided against our client. The impact of losing taught me a valuable lesson: no matter how impressive a lawyer is, if the law and the facts are against a client, chances are, the client will lose.

While working my first job out of law school, I was assigned to a huge litigation matter in which our firm was up against another large law firm. Mostly due to the fact that we had fewer resources than our adversary, our firm had a very difficult time notching victories against this other law firm. Our counterparts overwhelmed us with the sheer number of lawsuits they initiated in connection with this litigation, and we always felt like we were responding to our adversaries rather than taking control of the litigation.

In one chapter of that litigation, we lost a given hearing the same day as oral argument, which is a rarity in my experience. Many of the associates went out to a bar after work that day in order to drown our sorrows and commiserate together about the defeat. However, this entire episode taught me much about litigation, including how good litigators need to have well-orchestrated plans for a case and control the pace of a lawsuit rather than react to actions by adversaries. I think about the lessons learned from this experience often when I handle lawsuits now.

Recently, I attended a lawyers happy hour, and was speaking to another lawyer about various topics when our biggest legal fails came up. The lawyer related that he was once scolded by a judge for not annexing a required document to a motion he filed. I was impressed that this lawyer admitted that he messed up since lawyers often do not discuss any of their failures, especially when speaking to other attorneys. One transactional lawyer in the group, who did not have litigation experience, inquired about how this lawyer messed up. I bet this transactional lawyer now knows that if that lawyer files a certain motion in the future, they should not make the same mistake this other attorney made. I definitely think about this story when filing new motions, and it assisted me recently when reviewing a court rule related to a specific kind of motion I had not thought about since the bar exam.

All told, lawyers can learn a lot from their failures, and they can also teach others by discussing how they made missteps in the past. Although it is not always fun to talk about how a lawyer failed, attorneys can use failures to grow and teach others not to make the same missteps in the future.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

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