So last week I lost an appeal. I'm not going to blog on that case because there is nothing one can say in this situation that puts one in a positive light. It's over, the ice cream cone is on the sidewalk, the definition of the right interpretation of Maine law is what the SJC says it is, end of story.
Instead, I want to talk more generically about strategies to make the hopefully infrequent experience of losing more palatable.
1. Make it a learning experience. This sounds lame, but I think it's true that you learn more from your losses than your wins. After all, if you win, you did what you thought made sense and it worked – yay, but the lessons learned are not obvious. There are times when the lesson from a loss is very clear – from one experience, for example, I learned the perils of not briefing a non-waivable issue that the other side hadn't brought up. I thought I had a simple explanation should the issue be brought up in oral argument. Wrong. Don't throw new matter up in the oral argument; get it in the brief. Other times, the lesson may be less obvious. But even if you can't think how you could have presented your case any differently, you are still learning something about the court and its decision-making that you can incorporate in your approach going forward.
2. Be born Irish. With this comes an instinctive sense of Celtic fatalism, accompanied by the understanding of the glories of a heartfelt if ultimately unsuccessful effort. As long as you have given your client a realistic cost-benefit analysis, and have a reasonable argument, there's nothing unworthy about a game but unprevailing attempt. This lesson was brought home to me in law school, when I was working for a very good and very successful criminal defense lawyer in Chicago, who not-so-laughingly referred to the Seventh Circuit as the Court of Affirmance. Some challenges — many in the criminal defense arena — are uphill; that doesn't mean you don't climb.
3. Get cancer. Obviously this strategy has its downsides, but it does wonders for giving you perspective.
Yes, victory always feels better, and hopefully loss doesn't become a habit, but no one said that this would be easy, and sometimes tackling the more challenging cases is the better part of valor. Litigators protecting their win-loss percentages can get too risk adverse to the detriment of the best interests of the client. So when you lose say, "Rats!" in the privacy of your home or office; take a deep breath identify what you've learned; pat your dog on the head; and move on.
