Litigators

That Sucked! Now What?

Sometimes we lose and it is not our fault, but if we can identify points of weakness or procedural missteps that led to a bad event, it is our duty to ourselves and our clients to address them.

By Andrew C. Bershtein  
on

(Image via Getty)

As recently explained by our firm’s managing partner, John Balestriere, complaining serves no benefit to the client and takes focus away from our jobs as lawyers: winning. While my colleagues and I do our best to uphold a strict no complaining policy, we get as frustrated and angry as anyone else when things do not go our way.

Give Yourself Time to Process

More often than not, the hours immediately after a bad event are the worst time to analyze what happened. Everyone processes defeat and failure differently, but none of us are clear minded right after getting bad news or going through a bad experience. Personally, I internalize everything. I feel defeated, demotivated, and tend to blame everything on myself as though I am the sole cause of my own demise. Others process with anger, they want to yell, complain, and blame everyone and everything under the sun except for themselves for what went wrong. More often than not, there are a combination of factors that lead to a loss. Understanding and analyzing these factors with a cool and logical mind can prevent these events from recurring, or worse yet, becoming a norm.

The Post-Mortem Examination

Whether it be a failure to foresee an argument from an opposing counsel in court, a seemingly unnecessary or avoidable all-nighter, or a decision from a judge that just went the wrong way, we must evaluate bad events and learn from them. Ideally, we should channel the energy we feel when we are angry or frustrated in our jobs into productive lessons, rather than dwell upon them or hide our feelings thus leaving them to fester. To wit, after something goes particularly sideways, my colleagues and I take a page out of the medical field’s playbook and perform a post-mortem examination to evaluate the best way to prevent such events from repeating in the future.

While stewing over a loss is unproductive, planning for your next victory is vital. Our post-mortem conversations focus on future facing plans and what safeguards we can institute to prevent issues from arising on our next venture. Often times these discussions center on hypotheticals and can feel a bit like Monday morning quarterbacking. The key to keeping this practice productive is a level of removal from the subject matter.

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Discuss in Terms of General Issues, Not Specific Concerns

When conducting our post-mortem examinations, we do not focus on specific arguments or issues that related to the bad event, but instead speak in more general terms. We often discuss faults in logistics — who was supposed to do what and what went wrong (without allocating blame); issues with internal procedures — what interim deadlines should we have in place to prevent falling behind; and potential future pitfalls — why didn’t we see this coming, how do we prevent these blind spots in the future. While we are using the scope of a single situation to analyze our practices, the purpose is not to point fingers, but rather to extrapolate what we can learn from the bad occurrence to benefit future analogous situations.

Failure Does Not Mean You Did Something Wrong

While post-mortem examinations have yielded a plethora of insightful tips and directed future functional procedures for our Firm, sometimes a bad event is a result of factors outside our control. I recall a discussion with a friend recently who bragged incessantly about how well he argued a summary judgment motion. A few months later, he received a losing decision and was devastated. A few of us reviewed the transcript from the argument and underlying papers. We unanimously agreed that it was not his fault. He argued persuasively, the facts appeared to be in his favor, and we could not point to an error that he made (sure things can always be better, but he legitimately did a great job). Nevertheless, the decision did not go his way. Sometimes we lose and it is not our fault, but if we can identify points of weakness or procedural missteps that led to a bad event, it is our duty to ourselves and our clients to address them.

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Andrew C. Bershtein was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at john.g.balestriere@balestrierefariello.com.

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