- In litigation, we often face and must overcome adversity.
- Adversity tends to expose weaknesses.
- Identifying and solving weaknesses is important in litigating cases.
- It’s important to never underestimate your opponent in litigation.
I woke up in an ambulance. Disoriented and strapped to a stretcher, I looked down and saw I was wearing my goalkeeper jersey, shorts, and soccer cleats. Blood stains blotted my yellow jersey.
A year earlier, in my junior year playing for the St. Louis University (SLU) men’s soccer team, my season ended before it started. That preseason, doctors told me I had a stress fracture in my lower back. They advised I may never play contact sports again. I spent 10 months in a custom-made back brace, grinding through physical therapy and workouts. I came out on the other end in the best shape of my life and determined to compete. I carried that energy into my senior season, winning the starting goalkeeper spot on my team before the first game.
But my senior season ground to a halt in just the second game. In a tournament at Duke University, we were tied 0–0 going into halftime against North Carolina State. That’s the last I remember.
As I was later told, minutes into the second half, an NC State forward came in on a breakaway against me. I deflected the initial shot, but when I dove for the rebound, my face collided with the forward’s knee, breaking three bones in my face and knocking me out.
As I woke up in the ambulance, sidelined by yet another injury, I feared my season and career were over. Over the weeks that followed, I had to fight the fear and the adversity that ensued.
But the struggles in on and off the field have offered me strength and insight that I now put to use the courtroom. In litigation, we often face and must overcome adversity. That adversity may be different than, say, a broken back or face. But the mental challenges adversity presents on the field and the lessons it teaches are equally important in litigation.
I hate losing. But anytime you compete—whether in the courtroom or on the field—you must deal with losing and failure.
One of the biggest failures of my career happened in my last college soccer game. It was the second round of the National Collegiate Athletic Association (NCAA) Tournament. We were playing Indiana University at their home field. Midway through the first half, I let in one of the worst goals of my career. Here’s how an article after the game described it:
Mellencamp gave the Hoosiers all the scoring they needed in the 19th minute with a cross that turned into a goal. He took the shot from 30 yards out and as it bent inside the left post SLU goalkeeper Pat Disbennett misplayed the ball and watched it go over his head for the score.
Indiana Advances With 2–0 Win Over Saint Louis, Indiana University Men’s Soccer (Nov. 25, 2008),
As I sat, head in hand, wondering what just happened, I heard the home crowd begin to chant, “Goalie . . . Goalie . . . Goalie . . . You suck!” I couldn’t help but think to myself, “They’re right.”
But as painful as it was, I had to put that mistake behind me. The game continued whether I was ready for it or not. And my team needed me ready to perform—not sulking or feeling sorry for myself. In fact, according to the article mentioned above, I “was forced to make a diving save” just minutes after the goal, “came out and blocked” a breakaway attempt later in the game, and “finished the game with six saves.” If you don’t consider the embarrassing, awful, game-losing goal I gave up, I actually played a decent game.
Just as they are part of sports, loss and failure are part of litigation. Most trials end with a winner and a loser. And there is a chance of failure anytime you file a motion or lodge an objection. As litigators, therefore, we must be able to endure hardship and defeat.
I’ve had my share of losses in litigation. I’ve had judges scold and demean me in court. I’ve lost motions I expected to win. I’ve had juries and judges find against my clients at trial.
Each of these losses was painful in the moment. But as I learned in soccer, the game—like the trial or hearing—will move forward whether you are ready for it or not. You cannot dwell on how wrong or unfair you may think a decision or result is. It will only distract you from doing your job. You must put your losses behind you, move on, and focus on winning your next challenge.
Winning, like losing, can also create adversity—and when you least expect it. I entered my freshman year at SLU with high expectations. The summer before my freshman year, I led my club soccer team to an under-18 national championship. And our SLU team started the season ranked fourth in the county. I won the starting goalkeeper spot on the team after the first game, and I helped SLU build a 3–1 record while giving up only two goals in the first four games.
But in the fifth game of the year, I came in underprepared against an unranked opponent, looking ahead to the next game in which we were slated to play a top 10 team. In that game against the unranked opponent, I gave up three soft goals and was benched for most of the rest of the season. Our highly touted team went on to lose game after game against lesser opponents and failed to qualify for the NCAA Tournament.
As a litigator, you can’t get complacent with winning. It’s easy to take your foot off the gas after racking up a string of wins in a case. You begin assuming the winning will continue, looking ahead, and easing back on the work that brought you those victories in the first place. Momentum in a case can flip at any time.
I apply this lesson in prepping witnesses. In depositions, witnesses will often start to relax and lower their guard after having early success in the deposition. That’s why I like to remind witnesses at breaks that a bad answer reads the same on the transcript, whether given at the start, middle, or end of the deposition. It’s important to keep witnesses focused and not allow them to let their guard down until the questioning is over.
It’s also important to never underestimate your opponent in litigation, as in soccer. I made that mistake early in my college soccer career, and it cost me and my team. That’s why you should prepare for each adversary as if you were going against the best. As a former coach liked to say, expect the unexpected. At worst, you’ll be overprepared. But at least you’ll avoid losing matters that you could have won, had you not underestimated your opponent.
Adversity tends to expose weaknesses. My biggest weakness as a goalie was playing and distributing the ball with my feet. I was embarrassingly bad. In my freshman and sophomore seasons in college, I sometimes asked defenders to take goal kicks for me. My poor distribution likely cost me playing time in those first two seasons.
I hated working on my ball skills and distribution. I played goalie because I loved the competition of stopping shots and tracking down crosses. I had no desire to spend hours and hours on repetitive and monotonous drills to improve my ball skills. But I had no choice. If I wanted to play and help my team win, I had to address this weakness in my game. So I spent countless hours working on it. And while my distribution never became a strength, I improved it to the point that it no longer kept me on the sidelines and didn’t cost my team games.
I’ve tried to take the same approach in my litigation practice. When I decided to pursue litigation, I knew that oral advocacy and public speaking were my weaknesses. So I took as many oral advocacy and speaking classes as I could as a law student and tried to find as many opportunities to argue and speak as a young attorney. I then joined a boutique litigation firm where I’ve been able to handle hundreds of depositions, hearings, and other oral advocacy opportunities. There have been plenty of painful and awkward moments along the way, but I got the reps I needed to develop into a trial lawyer and turn my oral advocacy into a strength.
Beyond self-improvement, identifying and solving weaknesses is also important in litigating cases. In commercial litigation, every case has its weaknesses. It may be a bad fact, a bad document, or a bad witness. Most of us don’t want to deal with the weaknesses in our cases. We’d prefer to focus on the good facts, the good documents, and the good witnesses that support our case. But the best litigators do not ignore the weaknesses in their cases—they address them head-on and figure out a way to deal with them.
One of my partners is a master at this. He is often brought into a case close to trial or after things have gone sideways. Other lawyers in the case may have identified a problem but set that problem aside to focus on other matters in the case. Not him. He will confront the problem without delay. When necessary, he will have the uncomfortable conversation with the client that no one else wants to have. He will do what is needed to address the problem, because he values excellence and winning. And as a seasoned trial lawyer, he has taught me that problems don’t just go away if you ignore them. You must address your weaknesses if you want to succeed and win.
After the facial injury that landed me in the ambulance, I had facial reconstructive surgery and spent six weeks recovering. Once I received medical clearance to play, however, I had to earn my way back onto the field. In my absence, another goalkeeper on our team was playing well, and my coaches were concerned the trauma of my injury would affect my play.
A few weeks after I was cleared to play, I got my opportunity. In one of the last games of the regular season, our team jumped out to a 5–0 lead in the first half against St. Joseph’s. With the big lead, my coaches put me in goal for the second half. About 20 minutes in, St. Joseph’s was awarded a penalty kick. Here was my shot.
In the ensuing kick, I dove and blocked the St. Joseph’s player’s initial shot. But—just as in the North Carolina State game—a rebound bounced out in front of me with the St. Joseph’s player charging in. I didn’t hesitate. I attacked the rebound, diving head first at the ball and the incoming player. I reached the ball just as the St. Joseph’s player made contact and corralled his point-blank shot in my hands. After that save, I started every game for the rest of the season and the rest of my college soccer career.
Overcoming the adversity of two injuries is the proudest achievement of my soccer career. Likewise, my most difficult and challenging cases as a litigator have provided the most memorable and gratifying experiences. Hard-fought wins bring excitement and joy unlike anything else. They make all the pain and hardships of litigation worth it. q