The verdict came back three days after deliberations began, two weeks after the jury was sworn, and two years after the complaint was first filed. It had been a hard-fought case from the beginning, with the full array of discovery and motions practice, culminating in a well-litigated trial. The lawyers, each in the earliest middle part of their career, had handled themselves well, suggesting bright futures ahead. And substantively, the thing was a jump ball. Depending on which witnesses the jury believed most, it really could have gone either way. Not that you could tell from the lawyers’ faces, however, as the jurors filed back into the room. Both leaned forward in confident anticipation.
It didn’t last. By the time the jury was discharged, the losing counsel was slumped with his head in his hands. He looked shattered and disoriented as he left the courtroom, shuffling out well behind his client. That was several years ago, and I haven’t seen him since. But I think about him often and how unprepared he seemed for even the remotest possibility that the case wouldn’t go his way.
That was a sort of failure in its own right. It’s not enough for a lawyer to prepare and try the case skillfully, putting it on the best trajectory for the best outcome. At every stage, lawyers are also duty-bound to help their clients understand the risks as well as benefits of going forward. By the time of trial, most civil cases are a zero-sum game, in which each side controls only parts of the process, and with limited insight into the jury’s actual perceptions. Which means that even seemingly great cases, with favorable facts, credible testimony, and persuasive lawyering still sometimes will take a funny bounce. If you try cases often enough, sooner or later, you’ll get hit by one that you didn’t see coming. Great trial lawyers have learned to work through those tough moments with the same composure, professionalism, and focus as they do every other part of the representation.
Not that it’s easy. Get most seasoned trial lawyers talking about their careers, and they’ll likely tell you that they more viscerally remember the sting of their losses than the elation of their wins. In fact, we’re hard-wired to think that way. Neuropsychologists and behavioral economists describe this phenomenon as “loss aversion”—a cognitive bias recognizing that, as measured from a common baseline, people experience pain from losing almost twice as intensely as they experience pleasure from an equivalent gain. And while the research is still evolving, it seems that test subjects also register loss aversion more robustly in proportion to the increasingly competitive and diminishingly collaborative testing environment. If that’s true, well, there are few environments more competitive than the courtroom during a civil jury trial.
Whatever the psychological underpinnings, following an adverse verdict, lawyers commonly report feelings of embarrassment, guilt, anxiety, and shame, and not just mere professional disappointment. If it was a plaintiff’s personal injury case, they may feel guilt at having left a vulnerable or diminished client without the full expected resources. If it was a high-profile commercial case, they may worry about how the public loss could affect their reputation or career. Some describe feelings of inadequacy or imposter syndrome. But they better find a way over or through it. Because in the immediate aftermath of the verdict, counsel still has work to do.
If the client was expecting total affirmation or vindication, the adverse verdict surely came as a shock, perhaps followed by a barrage of questions. How did this happen? What does this mean? What do we do next? Their initial reaction may be to lash out angrily at their lawyer, or at the judicial system. Or it may be to reflexively launch immediate, fervent plans to appeal. Whatever the response, counsel serves their client well by bringing a measure of calm deliberation and assessment.
That said, the mere fact that the lawyer was retained for the trial would not, by itself, obligate the attorney to handle the appeal. Under Rule 1.2(c) of the Model Rules of Professional Conduct, “a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” And, of course, the client also has a say in the matter under Model Rule 1.2(a): “A lawyer shall abide by a client’s decisions concerning the objectives of the representation….” Finally, Model Rule 1.1 cautions that “[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” While the trial lawyer presumably knows the facts, law, and possible assignments of error better than anyone else on the immediate heels of the adverse verdict, they may not have the requisite familiarity with appellate process, or enjoy sufficient proficiency in preparing a winning appellate brief. Thus, per comment 2 of that same rule, they may need to invest in adequate study or retain appropriately skilled co-counsel.
Regardless of whether they actually stay on for the appeal, however, trial counsel still owes ongoing duties to their client after the adverse verdict. For example, Model Rule 1.4(b) provides that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Thus, post-verdict, the trial lawyer should propose meeting with the client some short time later to explain the mechanics and timing obligations of an appeal, as well as any assignments of error they anticipate from the record. They should be ready to discuss post-trial motions, and to revisit settlement options. To paraphrase Winston Churchill, in some cases the adverse verdict at trial is “not the end ...[nor] even the beginning of the end. But it is, perhaps, the end of the beginning.”
Whether the case continues into the court of appeals or not, great trial lawyers find lessons in every courtroom experience. Including the tough ones. Here are four practical suggestions to help you learn from your scars:
Talk to the jury. Most jurisdictions and judges will let you speak with willing jurors, once they are released. These post-verdict interviews are invaluable—both for learning what worked and for discovering where you might improve for the next time. If you have distracting mannerisms; if you overplayed your cross-examination or misread a witness; if your trial strategy missed the mark. The jury will tell you.
Talk to your client, early and often. Part of your job as trial lawyer is to convey the risks and uncertainties of the case in particular, and trial process in general. Don’t sugarcoat or oversell the likely outcomes during trial preparation. When you are away from the courthouse, and out of the spotlight, your client needs you as a reliable guide, and not as a cheerleader.
Recognize that it’s not always about you. Even skilled lawyers can’t wholly fix bad facts or flawed witnesses. No amount of preparation can guard against every surprise on the stand. You took the case as you found it. You did the best you could with it. Give yourself a finite amount of time to process your disappointment, and then move on.
Find mentors and resources to help if you’re stuck. Finally, if loss aversion has wholly gotten the better of you, and you truly can’t shake the traumatic effects of a trial loss, don’t hesitate to engage mentors, mental health professionals, and community resources to help you stabilize. The ABA maintains a handy list of services near you.
