Beyond Biglaw: Celebrating Failure

Columnist Gaston Kroub shares an interesting idea from the business world that has relevance for the legal profession as well.

Losing stinks. But it happens, for all kinds of reasons. In my experience, the difference between the most successful lawyers I know and the least successful ones is often tied to how each group deals with setbacks. Top lawyers seem to have an uncanny knack for “minimizing” losses, and leaving the door open for a turnaround in fortunes in short order. In contrast, weaker lawyers allow even small setbacks to throw them off course, or even balloon into full-bore crisis.

Because law is in many ways an adversarial business, and I have yet to meet the person who has the perfect life, all of us deal with losses, whether they be major or minor, on a daily basis. The measure of our professional and personal happiness often revolves around how we respond.

But what happens when we are involved is a “big loss,” such as at trial, or when an important deal that gets blown up? Thankfully, those experiences have been few and far between in my career. But they have happened, and particularly as a younger lawyer I submitted to the human tendency to chalk it up to bad luck, or other people’s mistakes, as a way of coping with the disappointment. I would also try and channel that disappointment into self-improvement of course.

At this stage of my career, however, I have come to realize that under certain circumstances, “big losses” present important opportunities to seize — especially in a small firm, where so much personal investment goes into each project, and where the likelihood that success or failure will directly impact the client in a material way seems to be greater.

I recently saw an interesting mention of a technique used by a “Big Pharma” CEO, Severin Schwan of Roche, that I think has application in the law firm world, particularly for small firms, or at the practice group level of Biglaw firms. As we all know, research and development of new drugs in the pharmaceutical world is an expensive and time-consuming endeavor. Pharmaceutical companies can spend billions to fund years, and sometimes decades, of intensive research by top scientists and their teams — all in the hopes of developing the next blockbuster drug. What those of us outside of the pharmaceutical industry may not appreciate, however, is how much of that effort and expense ends up leading to failure. To put it in context, imagine the disappointment that a team of lawyers feels after spending years developing a case, followed by months of trial, only to lose a jury verdict. Lab teams whose projects end in failure face the same emotional devastation.

So how does Dr. Schwan try and alleviate that disappointment for his lab teams, while also motivating them for the next effort? Simple. He throws them champagne lunches, to celebrate their “noble failure.” It is a brilliant move in my opinion. We are so used to celebrating success that it may seem counterintuitive to celebrate failure. But celebrating failure, under the right conditions, may be one of the single best things a firm can do to start down the road to the next success.

Conversely, we have all seen the negative consequences attached to overindulgence in celebrating success, and how difficult getting motivated for the next challenge can sometimes be after a big win. For Dr. Schwan, and I submit for anyone in a leadership position at a firm, it is important to show employees that the organization values their efforts, even if the outcome was not the desired one. I do not doubt that this approach only has positive effects on morale after a disappointing loss, and increases firm loyalty on the part of the employees who are being recognized.

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It is not difficult to see how “celebrating failure” can be implemented in the law firm world. At the same time, in order to extract maximum benefit from this approach, it is important to use it sparingly and with the proper context. No firm wants to foster a “culture of failure,” or even acknowledge that failure is an acceptable outcome. Because it is not. That said, taking steps that help motivate lawyers and staff to achieve the next success and get back in the hunt as quickly as possible can be advisable under the proper circumstances. There is no need to throw a cocktail hour for a litigation team that handles multiple smaller trials a year, in an area of law that tends to engender variable results. But perhaps your firm took on its first big deal, one that required a full-on commitment from everyone at the firm. If that deal fell through, especially for reasons unrelated to the quality of the legal work of the firm, perhaps some recognition of the effort involved is appropriate.

Ultimately, a good rule of thumb regarding when a champagne lunch or some other form of “celebrating failure” may be appropriate is this: If the result would have gone the other way, would it be cause for a sizable celebration? If so, perhaps celebrating failure is in order (while being sensitive to the need for the lawyers involved to first decompress). This recognition can wait, and there is no need to force the trial team to come in the day after the verdict so that everyone can celebrate their effort over a Chinese buffet in the conference room. At bottom, everything done after a loss should be in service of getting everyone involved started down the road to the next success. By appropriately celebrating failure on rare occasions, firms can create a culture of redefining it, so that a trial loss becomes appreciated as the source of important experience towards the next case, for example. The firm that minimizes failures is the one most likely to eventually celebrate for real.


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 gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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