Take a moment to think about your most memorable victory, and be honest with yourself. Were the facts on your side? How about the law? Did you actually overcome the odds, or was the outcome predetermined?
One of my colleagues and I were recently regaling war stories over lunch. The topic quickly turned to the most exciting, entertaining, and memorable cases each of us has litigated. As the conversation progressed and tales of victory were exchanged, I found myself noticing how closely we as lawyers identify with our work. After an impressive display of one-upsmanship, the discussion took a dark turn and we began to discuss our worst failures.
Without taking any time to think about it, I found myself instantly remembering my worst defeat. I will not bore you with the minutia of the facts, or the ruling, suffice it to say that despite vigorous litigation, the judge ruled completely against me. Notice how I phrase that: the judge ruled against “ME” — not my client, not my firm, ME.
In retrospect, that is standard protocol for discussing the results of our work. When we win a case, it is our victory, we earned it. When we lose a case, it is our defeat, we have failed. Each decision, each judge’s order is an assessment of our efficacy — infinitely more important than any other source of feedback we have ever received. Each of us, especially litigators, credit our quick wit, our charm, our inventive arguments, our handwork and preparation, or our reputation for each case we win.
The personal identification with our work is part self-preservation and part ego. Each of us wants to believe that we are the unique element that wins the case. Past that, reconciling the amount of time we put in, the tremendous talent we exhibit with each argument we set forth, the eloquence of each phrase we utter at a hearing, and the intellect that drives our litigation strategies with a world that does not care is inapposite. Our work must matter or else there is no point.
A senior attorney once told me, if the facts are on your side, argue the facts. If the law is on your side, argue the law. If the facts and the law are against you, yell louder than the other guy. While I am uncertain that this is a sound litigation strategy, the point is clear — a good lawyer finds a way to make his client right.
While I respectfully take any advice I am given, a reality check is in order. There is no lawyer who wins every argument and dominates every case. The reason for that is simply that the facts of the case, not the attorney, often decide the ultimate outcome. Bearing in mind this reality can help keep us grounded and, in fact, helps us to counsel our clients.
With that said, when the facts are neutral, and the law is not clearly on any party’s side, that is when our advocacy can truly shine. Those are the stories worth sharing and the victories truly worth celebrating.
Andrew C. Bershtein is an attorney at Balestriere Fariello who represents clients in in all stages of litigation, arbitration, and mediation. He focuses practice on complex commercial litigation, contract disputes, and real estate law. You can reach Andrew at andrew.c.bershtein@balestrierefariello.com.