If you’re a criminal defense attorney who tries cases, you inevitably experience the pain of losing in court. Some losses are more painful than others. In many cases, you walk into court knowing that you’re almost certain to lose. It’s never fun to lose, but it’s a lot easier to brush off defeat when you know that all of the facts and the law were stacked against you. The more difficult losses occur when you walk into court believing that you should win and things go sideways. I took a hard loss this past week that’s been on my mind for a couple of days now. Thankfully, it wasn’t a loss that resulted in my client spending years or even months in prison. But he’s gone to jail and I didn’t think that he should, and I feel terrible about it.
Criminal defense lawyers don’t talk much about losing. Nobody is going to plaster losses on their website because it doesn’t make for good advertising. But I thought that it might be useful to others and myself to talk about processing a loss. The expression “take an L” means taking a loss. But “taking an L” doesn’t mean that you’re an irredeemable loser. “Taking an L” simply means accepting that you’ve lost and moving on. As an essay on the Ringer wisely stated: “When people tell you to take an L, they’re not telling you to lose. They’re telling you that you need to get over losing because you’ve already lost. They’re telling you, don’t have a tantrum...Accept loss, keep your dignity. Live with it.”
While taking a loss in the courtroom or any arena of life produces painful emotions, harnessing that pain is often precisely what’s necessary to grow and improve. My favorite sports figure, Virginia head basketball coach Tony Bennett, took one of the most embarrassing Ls of all time when his team became the first #1 seed in history to lose to a #16 seed in 2018. The whole country watched UVA not only lose but get blown out by a team that had no business being on the same court with them. Tony was ripped to shreds in the press and Twitter was ablaze with jokes about how UVA was a gimmick program that would now fade into oblivion. It would have been easy for Tony to slink away with his tail tucked between his legs. Instead, he embraced the loss and described it as a “painful gift.” One year later, his team pulled off the ultimate comeback and shockingly won the national title. In his post-game press conference, he said “If you learn to use it right, the adversity, it will buy you a ticket to a place you couldn't have gone any other way." While we all enjoy winning more than losing, it’s taking Ls, the faceplants and the failures, that makes us stronger.
But to get the full benefit of “taking an L,” it’s not enough to merely accept defeat. You have to put in the painful work of introspection, self-doubt, and reflection on what you could have done differently. Thinking about losing is painful because it means “smearing the delicate portraits drawn of ourselves in our heads.” But if you’re going to get something out of these “painful gifts,” you have to be willing to go there. In Tony Bennett’s case that meant completely rethinking how he ran UVA’s offense. In the case of a criminal defense attorney, that means being hard on yourself. It means challenging and doubting the decisions that you made over the course of a trial. It means confronting your own ego and admitting that your arguments might not have been as brilliant as you thought.
If you’re a criminal defense attorney, and all you ever say after “taking an L” is some variety of “The judge sucked. The jury sucked. The law sucked,” you’re never going to grow as an attorney. If you’re going to get anything out of an L, it means putting deep thought into what you could have done better. Even when you win, you should be thinking about what you could have done better. The reality is that many wins and losses are flukes that could have easily gone the other way.
This post has become a bit meandering, but I want to leave with a few key points. 1. Trying cases as a criminal defense attorney is hard. You’re going to take some Ls. But if you’re one of the attorneys who actually tries cases instead of being part of the guilty plea machine, you’re already on the right track. 2. When you take your inevitable Ls, don’t be one of the attorneys who blames everyone but themselves. Surround yourself with people who will be honest with you rather than tell you how awesome you are and how nothing that went wrong at trial is your fault. 3. Be tough enough to accept your defeats with class. If you try cases, you’re going to get punched in the face. You will be treated unfairly at times. It can be tempting to take your ball and go home. Don’t be one of those people. If you take an L, it’s fine to have a few drinks and wallow in self-pity for a few hours. We’re only human. But keep the pity party brief and then put in the real work of self-assessment and deep thought about what you could have done better for your client.
Taking Ls is hard. But it makes us better, stronger, and more interesting people. Perfect people are boring. Undefeated people are only people who never took any real chances. Take pride in being one of Teddy Roosevelt’s men (and women) in the arena “who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds.”
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