Like many on this past Sunday afternoon, I was watching the Cowboys-Packers playoff game. With a strong rooting interest. Because as an Eagles season ticket holder, watching the Cowboys lose can be as enjoyable as seeing an Eagles victory. Other serious football fans will understand. Sunday’s game was a memorable one, played between two strong teams in one of the sport’s most hallowed stadiums. The most memorable, and controversial, moment occurred late in the game, when a spectacular catch by Dez Bryant was overturned upon review by the game’s referee. It was a dramatic call, and the result almost led me to sympathize with Cowboys fans. If anyone needed a reminder, Sunday’s game proves that the line between success and failure can be an unforgivingly thin one. Winning and losing often come down to a single close call.
It is hard to imagine an interesting legal career for a civil litigator that does not involve losing in some form. I say interesting, because maybe there are some litigation practices that involve rolling over overmatched opponents, with success a near guarantee. Of course, my idea of interesting involves patent litigation, and if there is a way to guarantee success in patent cases, I would be very interested in hearing about it. In fact, patent cases are notorious for involving many legal issues, including such challenging ones as claim construction (an issue so complicated that the Supreme Court continues to be called in to teach the lower courts how to handle it) and everyone’s favorite — damages. Many a patentee has seen an otherwise successful case turn into a failure because of difficulty in proving damages.
In fact, patent litigation is often a game of containment. When you are a plaintiff, the goal is often to get at least one claim to trial — knowing that in the process many issues in the case may go against you. As a defendant, your brief is often to limit the damage and try and drive the case towards a cheap settlement. If you are going to lose in a patent case, you hope it is only on minor issues. The best litigators are masters of losing on unimportant issues, while working magic in order to prevail over and over again on the critical ones. But no matter how anyone tries, there will be times where you lose on an important issue in a patent case — or even the whole case.
How Innovative Legal Teams Are Turning AI From Promise To Practice
In recent years, AI has moved beyond speculation in the legal industry. What used to be hypothetical is now very real.
Yes, it is important to keep any losses to a bare minimum. A critical, but often overlooked, determinant of whether you will be able to do so is your answer to a simple question: How do you move past a tough loss? Because there is a constructive way of dealing with setbacks. And a destructive way as well. Too many people lack the self-confidence and emotional tools to deal with setbacks in a constructive way. Ego-driven lawyers are not immune, and in fact may be more susceptible to dealing with losses in a way that actually helps start them on the road to their next loss, rather than helping them on their way to victory in their next close legal battle. It is not like law school or firms offer any training on how to cope with, and learn from, losses. Just another critical skill that lawyers are expected to “just know.”
Here’s an example of how close calls happen in litigation. I was once responsible for the management of a patent case between two competitors. A hard fight, on everything from discovery issues to the actual merits of the dispute. The case came down to the judge’s interpretation of a single word. The proof that it was a close call? Originally the judge agreed with our position, only to switch to the other side’s position later on in the case. Boom. We lose. Knowing that it was a very close case made the loss harder.
It would have been easy to become paralyzed second-guessing every aspect of how we handled the case. But a hyper-critical approach to dealing with a loss is rarely productive, and can be very emotionally damaging. Again, there is a real risk of an uncontrolled downward spiral if someone lets a bad loss destroy their confidence. Instead it is healthier and more productive to try and identify those places where a different approach might have made a difference in the result. For example, in the close case I lost, I always had the suspicion that the judge did not fully grasp the invention. So maybe a better demonstration of the patented technology could have made a difference in the way the judge viewed the key claim term that ultimately decided the case. If anything, the case was a reminder that one of our most important jobs as advocates is to make it as easy as possible for the judge or fact-finder to make the close calls in our favor. And that sometimes providing more context can help make that a more likely result.
So instead of instinctively beating yourself up after a loss, remember that it can often be more productive to use the opportunity to build yourself up. In my case, I tried to remind myself that I had a long career ahead, and that the case provided tremendous learning opportunities for future cases. More importantly, I took succor in the fact that we were able, despite being outgunned and outspent by the other side, to get the case to a point where the judge was at least originally willing to see things our way. And where the possibility of a successful result for our client was a real one. In fact, because we made the case so close, the case was able to settle on reasonable terms for our client, despite the setback we encountered. Thankfully, litigation is not exactly like sports, and has a more expansive definition of success. If you want to put your clients in the best position to achieve the success they hired you to obtain, taking a healthy approach to dealing with the inevitable setbacks is necessary.
First Draft To Final: How To Use AI To Accelerate Legal Drafting Workflows
Discover how LexisNexis Protégé™ transforms legal drafting into a strategic collaboration between lawyers and AI—enhancing quality, speed, and defensibility.
Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.