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Loser Like Me: Coping with Case Loss

  • August 01, 2014

Not many would describe Alan Lenczner as a loser, but even he's lost his share of cases.  His tenacity and resilience have earned him a place at the top, as on of Canada's most successful and respected litigators.

Lawyers don't like talking about their case losses.  However, the old adage says we learn from our mistakes. We also learn from one another, which is why five seasoned trial lawyers, the best in their practice, agreed to take on this taboo topic and share how they've grown from their losses and learned to build resilience in a very trying profession.

Alan J. Lenczner, Q.C.How do you define a loss?

Loss for a lawyer is to be differentiated, I think, from loss for a client.

Often you’ll get a case whether it’s civil or criminal, where your client is behind the 8-ball, you do the best you can, you might be able to diminish the damages or cut out some of the grounds of liability and that’s all you can do – that’s not a loss. Turn to the other side of the coin and you’re acting for a plaintiff. Often you will advise the client to initiate a lawsuit. To me, if you don’t succeed, it’s a loss for the lawyer in the sense that, “did I miss something, was my opinion at the beginning solid enough?”

I don’t identify with my client, I identify as a professional. If I can look in the mirror at the end of the day and say I think I did everything properly – and I’m saying this to myself, so I’m not trying to kid anybody else – then I don’t define it as a loss and I don’t get down about it.

How do you deal with it?

I’ve been in practice for over 45 years now, and it seems to me if you get high and low, particularly low, every time your client wins or loses a case, you’ll be a basket case.

I am a professional, I do my job, I get paid for it, and it doesn’t matter – of course it matters if you win or lose – but it doesn’t really matter that much to me if I win or lose when I’ve done a good job. If I have a stake in this case, I lose objectivity.

What was your experience as a young lawyer?

At first it was all about winning. I would identify with my client completely. I made a lot of mistakes when I was young; I hadn’t thought things through, I’d get caught in the court of Appeal or at trial. The first few times I appeared in the Court of Appeal – in those days you had judges who were really, really tough on all lawyers but particularly young lawyers -  I’d show up and I’d say I had three points, and they would say “your first two points are rubbish. Let’s hear your third point.” I’d leave the courtroom and I’d fume. But when I calmed down and thought about it, I realized they were right. I hadn’t done a good job, or I’d missed a principle. Out of every loss you learn something really valuable.

Any advice for new lawyers?

My advice to young lawyers is get into court, get into tribunals, get on your feet as much as you can and you’ll better understand the meaning of both winning and losing.

James Lockyer

How do you define a loss?

The problem with appeals is that you’re confronted with issues of whether the trial was properly defended, whether evidence that should have been heard was not lead, how you cope when the defence didn’t call the client, and the fact that the Court of Appeal does not look to guilt or innocence, it looks to process, which can be extremely frustrating. When you put all that together, winning and losing is really a feeling you have, which applies to a particular case. Do you feel like you won or do you feel like you lost? For me it’s a personal thing and a professional thing, which often winds up as “do I think I did a good job or not?”

How do you deal with it?

If I lose a charter argument, when that’s the sole defence, I don’t feel too bad. If I lose a trial when I believe the client is innocent, I feel overwhelmed. If I lose a trial when I’m not sure, it makes me very anxious. If I lose a trial where I don’t think the issues were that significant but the consequences are enormous, I feel very troubled by it. At the appeal level, if I lose an appeal where I think the client did not commit the crime, I feel pretty devastated.

We all lose – two years ago I lost a first degree murder appeal that I’m absolutely convinced the chap didn’t commit the crime; I’m still dealing with it, trying to think of how I can get this case before a minister for a ministerial review. It was a murder where I brought in some fresh evidence upon appeal, which I thought was devastating to the Crown’s case but unfortunately the Court of Appeal didn’t agree with me. And I lost a unanimous judgment from the Court and that can be very, very upsetting, and was and still is - I still think about it.

The reality is, whatever anyone says, Crown side or defence-side, very often when you lose you take it emotionally. When you don’t you’re not a particularly good lawyer, at least on the criminal side. I don’t know how people can claim to not have emotional reactions to their wins and their defeats.

Any advice for new lawyers?

Don’t take on a case that’s too big for you. For example, if you’ve only just started in criminal law the likelihood is that you’re not ready for a serious case. Don’t do it, because you can’t try to create experience for yourself at the expense of someone else’s life. Sometimes as an appeal lawyer, I run into that. It’s quite apparent that the defence counsel simply wasn’t up to the task and was overwhelmed by the process, the seriousness of the case, usually the skills of the prosecution and likely as well a judge who may well have favoured the Crown’s side because of annoyance at the inabilities of the defence. So don’t try to take on something that’s beyond you.

Michael Cochrane

Describe your first case loss.

My first civil trial was in 1980, a few months after my call to the Bar. I was practising in Ottawa then, which meant working the Ottawa Valley and surrounding towns. I represented a farmer who had purchased a “defective” dairy cow. The cow only had three teats and the farmer’s evidence was that the cow therefore did not give enough milk. We sought considerable damages.

My exhaustive examination in chief of the farmer was followed by what I considered an insultingly brief cross examination. I closed my case. And then, right out of an old Perry Mason episode, the defence called a surprise witness. Climbing into the witness box was my client’s son! He had worked on the dairy farm until he had a falling out with his father. His evidence? Not only did that cow give milk, it gave more milk than the four-teated cows. I stumbled through my cross examination, which in retrospect probably underscored just how much milk that three-teated cow was capable of giving. (Are you sure it gave more milk? Are you sure you’re sure?) Case dismissed. I drove back to Ottawa devastated. I had never even had a chance to refer to my thick factum on the law of product’s liability. Lesson learned? “Good evidence beats great law every time.”

How do you stay resilient?

I didn’t quit practising law of course; I have carried on for another 34 years. I learned that approaching each case as a winner-take-all proposition will inevitably lead to disappointment. We are not supposed to win every case. We are telling judges stories and they, as historians, then decide which version of history is to be written down.

How do you define a win or a loss?

Family law? Now there is an area of practice in which a loss can take its toll. There are no three-teated cows or surprise witnesses and most experienced family law lawyers can tell you pretty much how the case will turn out based on their initial interview. It often becomes a sad and expensive waiting game for the lawyers and clients to arrive at the same conclusion about this family’s history together and their potential future apart. We tell our clients not to think of it as “winning versus losing.” But the fact remains that after divorce both people have less than they had before, they both see less of their children than they did before, they both struggle with holidays and family events, they get sick from stress, they look for new partners and they carry on with life always feeling a tinge of sadness about what happened. Actually it is hard to ever describe any of it as “winning”; I prefer to think of my role as being their wise companion on a journey around or directly over hot coals. Winning? Yes, if their feet aren’t too badly burned.

Gary Luftspring

How do you define a loss?

At the end of the day I’m a trial lawyer, an appellate court lawyer, and what I actually tell clients verbatim is I have certain views and opinions and what I tell you may shape how the case goes and may very much affect what it settles for. If you go to trial, the only opinion that matters is the judge’s, and you’re effectively paying for that opinion. That opinion may be right or it may be wrong, but it’s what is. At the end of the day our system is flawed, but it’s as good as it gets.

Personally I’m of the view that judges decide cases on the basis of who they want to win. My job is to make sure they understand the facts and understand that if they want my client to win, here’s how they do it. If I’ve done that, then I’ve done what I can do –ultimately it is clients who win or lose cases, much more than lawyers do.

How do you stay resilient?

I think I always had a pretty decent perspective, that being said there isn’t a trial lawyer I know who goes to trial and doesn’t believe by the time they stand up in court that they’re right. You just do, you’re immersed in it, you understand the deficiencies but at the end of the day by the time you’re standing up in court you believe that you’re going to win. With experience you develop perspective and I think after the fact you can look back a little easier and say, ‘I see where they went and I get it’.

It’s sometimes very hard, because you are so vested in some of your clients’ cases and you so believe that you are on the side of the angels that you don’t have that kind of perspective; the game goes on a lot longer than the individual dispute.

Any advice for new lawyers?

The disturbing trend, and it is visited a lot on youth but not entirely, is when it gets personal. We are hired to do a job and to fight the good fight, but it should not become personal between counsel. I think judges hate that and will have none of it. There are certainly situations when you feel the other side has done something wrong and even situations where you feel they’ve done something unethical. You can make objections, you can do what you have to do, but at the end of the day it is a much more fulfilling experience if you can develop a relationship with the other side. I can’t tell you that’s possible in every case, but it’s what you should strive for, being above the fray. I think it gets you through and it means that in your next case with that counsel, you have a certain credibility, and your credibility and integrity are everything.

Sandra Dawe

How do you define a loss?

In my practice, I am almost always representing a party in litigation. Success is a result that pleases the client. It is really as simple as that. That isn’t necessarily a win in court, because many times the cost of taking a case that far, or the stress to the client, means that a good negotiated result is success for that client.

How do you deal with your case losses?

We litigators can so easily believe that wins and losses are all about us and our reputations. To some extent, a litigator needs to channel that ego to confidently present the client’s case. But if it gets to a point where concern about reputation is the driving force – then the client is likely not being best served.

As for dealing with a loss personally – sure, wins are a high and losses sting. But if I have done good work, then the pain will fade. If you can’t move past a hard-fought loss, then litigation is probably not going to be your best career choice.

I like to give the loss a good hard review – wallow in it for a bit, and try to figure out what led to the result. I need that to serve the client, and I need it for me. Then, assuming the case is over, I close the door and move on, trying to take with me whatever I have learned from the experience. I say ‘try’ because there are always those cases that haunt you for longer.

Any stories or advice to share?

Stories of losses? No, litigators only tell stories of wins. It’s like war stories – you repeat the tales of your wins as many times as people will listen to you. And that is part of what keeps us going past the losses.


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