There are three instances when I know I will lose a case.
The first is when I have an abjectly poor case. We don’t get to pick the clients or the cases. They pick us. If they have good case, great. If they don’t, great.
The second is when a case is decided on sentiment instead of law and facts. Humans are emotional and psychologically complex creatures. We are guided and driven by our emotions. It is difficult to change how we feel about something intrinsic to us because of an intellectual reason.
The third is when the judge is dead against me or my client. Solstice happens. It is what it is. We don’t get to pick the courts or judges we appear before. We don’t get to choose our relationships with them. Sometimes we get on, sometimes we don’t.
Whichever the instance, the prep remains the same. It’s a force of habit.
I go through my routine:
Read the court papers, closely consider the supporting documents, carefully weigh the arguments and the correctness of the legal propositions. Break them down. Notate my observations. Build them up. Back and forth. Back and forth between my notes and the court papers and documents as I consider the viability, plausbility and soundness of my developing thoughts. If it is a hearing, craft a roadmap of my submission for clarity and cogency, which I will not stop tweaking until I stand to submit. If it is a trial, draft my cross-examination questions and hone them constantly with additions, subtractions and rearrangements.
The first draft is never the last, the last draft shouldn’t be rushed. There should be a fallow period between each draft version.
The approach I take with the first type of cases is to accept I have a very poor case and that I cannot win it. That removes the automatic barrel-of-a-gun-to-the-temple pressure to win that activates within litigators whenever we get a case. It keeps my expectations in check.
To repeatedly hope for the impossible is to eventually harm our capacity for hope and optimism. When will feel perpetually let down, it is easy to turn bitterly cynical. So, keep our expectations reasonable and realistic. Pick three of the most plausible arguments, run them; assuming you have that many. Avoid being unreasonable or annoyingly insistent, it leaves a bitter aftertaste. These sort of cases are not worth taking a hit on your reputation for. Actually, none are. Each hit is a stain on the white cloth of our reputation.
Instead, use losing cases to establish or improve our credibility instead of eroding it. Remember, practice is long. Our litigation reputations are carved out of the cases we do in court and interactions with others. Cases by case. Judge by judge. Lawyer by lawyer. So, adopt a professional and cooperative attitude in our engagements and we will be known for that. Our professional reputation and relations with others should not suffer over any case.
Concede or disclose where appropriate, be reasonable and act within our legal ethics. Encourage settlement. Problem solve. Be cooperative and respectful. If you have ever experienced the sense of satisfaction and comfort after dealing with someone, that’s what I am talking about. We want them feeling, That was such a pleasant experience. He was a pleasure to deal with. Why can’t other lawyers be like him?
I am not saying I am that kind of lawyer. It’s not for me to say. But that is what I aspire to be. Daily. It is practice. For that reason, I do not understand lawyers, and some of these are senior lawyers, who adopt belligerent and contemptuous behaviour in their dealings for hopeless cases. Actually, I do. But why so nasty with fellow brothers or sisters-at-law? Sure, our clients have a dispute, but why can’t we be civilised and reasonable about it with each other?
A couple of years back, I was told by a far more senior lawyer than me after we concluded a matter that ended in my client’s favour, when we met over settlement talks after, I will not congratulate you, Fahri, because I was right, and you know it. I will appeal and prove you wrong. I replied, I wasn’t expecting any from you. You are welcome to try. It was unfortunate he could not make good on his undertaking. But why did he have to introduce such antagonism between us?
Although this sort of anecdotes is fun recounting, it speaks poorly of the relationship we as lawyers have with one another. I find the spectre of senior lawyers behaving disgracefully sad and tragic because they should know better. We should be the ones who are at least one step removed from the dispute. That is supposed to give us a measure of objectivity.
Sometimes lawyers forget we are dealing with other people’s legal matters, there is nothing to get personal or be belligerent about. Injecting such unnecesary negative sentiments complicates a matter and potentially makes the dispute more intractable.
As for the second and third type of cases, that is taken care of by my usual approach to my cases: I adopt a beginner’s mind. That is to simulate the outlook and approach of looking at everything anew, as if for the first time; to assume, know and impute nothing. To induce a momentary forgetting about my prior knowledge and experience of the legal issue or judge.
I do not worry about keeping the purity of a beginner’s mind, it is impossible to sustain. Gradually, almost imperceptibly, our beginner’s mind outlook will be restained by the innateness of our experience, education and maturer thoughts. Our previous knowledge and awareness intercedes into our experience. The point is to suspend the staining for as long as possible.
Imperfect as it is, this approach is important to ensure my performance is not diminished by the awareness of the hopelessness of the situation. Wilful ignorance is necessary to allow for a ray of hope to emerge. It enables me to maintain the required level of intensity to conduct my cases properly. Keeping the flame of my motivation burning and protecting it from being smothered by the certainty and cynicism of defeat is important.
It is incredbily enervating and demotivating to feel like a lamb led into the slaughterhouse. There is a sense of hopelessness and futility to the occasion. The stronger I feel this way, the likelier it is my performance deteriorates. It is this sense and feeling that I try to stave off with the beginner’s mind.
If you saw me arguing the same point again and again with the same passion, verve and freshness, that is how I do it. Sometimes, to better our professionalism in performance, we have to possess a beginner’s mind at the beginning, not an informed one. Knowing, or a sense of knowing how things will turn out does not necessarily make us better off.
