How to Learn From Failure as a Trial Attorney

By Mike Campbell | Mar 25, 2021 | Trial Tips

Mike Campbell

I recall the first time I gave a closing statement to a jury. I represented a farmer who suffered a neck injury years earlier. I got to know this farmer pretty well and spent time with him on his farm. I became friendly with him and his family. As a result, I really wanted to win for him. In thinking through my closing argument the night before I was set to give it, I started to get really anxious. I realized that there was a good chance he’d placed his trust in the wrong person and that he’d lose his case because of me. I thought I would fail him. I remember feeling discouraged and worried I might choke up in my closing because of how bad I wanted to win for him. Fortunately, I didn’t. And fortunately, I won that trial—beginner’s luck.

I say beginner’s luck because I’ve hit some rough ones since. God bless the trial lawyers who lose their first trial and get up the next morning to crack away at more cases. Losing is brutal. It’s soul-crushing. I hate losing more than I like winning. I’ve had the good fortune of knowing what a win or two feels like and the “misfortune” to take my share of losses to know how it weighs in the balance for me. But there’s something about experiencing failure that informs the person about themselves that winning never can. In failure, we start to get a measure of ourselves. Some people fail and think, “I never want to experience that again,” and walk away. I don’t blame them. Losing sucks. But there’s also a bunch of people who have learned to “dance” with failure…who have learned that as painful as it is, there’s this fire inside of us that is inexplicably stoked by failure.

Some people like to point to baseball players and point out that they fail all the time but get paid mightily. The analogy is that baseball players get to the Hall of Fame if they average at least one hit out of every three in a game over their career, so they can fail twice and still succeed. Somehow that’s supposed to serve as a comparison to what you experience when you lose a case. But I’m sure you’re aware that striking out in a meaningless game is far different than losing for a client who you’ve bonded with and who had a righteous cause. But what about the pitcher who throws a wild pitch in a big game and loses it? Everybody sees it and discusses it the next day, everywhere. Or, what about the young batter who strikes out in the final game of a series with two on the ninth, down by one, and the count is 3-2.

As awful as those moments can feel, good players don’t resign or retire because of one, two, or three big misses. In fact, we cherish and celebrate the plucky player who keeps coming back time and time again. The boxer who gets knocked down but manages to find the strength to stand back up and finish the match. What really good athletes know is that one match, game, or event doesn’t define who they are. Instead, it informs them about how they can adjust or tweak their technique for the next time an opportunity comes.

Consider baseball player Rick Ankiel: Here’s a guy who came out of high school as the next “big thing” in pitching. Considered the number one pitcher out of high school in 1999, he was considered by scouts to be the next Carlton, Johnson, or Koufax. Then, during Game One of the NLDS in 2000, he throws not one, not two, not three, not four, but FIVE wild pitches that absolutely derailed his career. Rocked by a massive failure, Rick went back to the minor leagues where fans would show up and put hard hats on to mock him because he never knew where his pitches might go. As far as failures go, Ankiel suffered one on an epic scale. His whole life was geared towards winning big, and that one game caused it all to crash around him.

Some of you already know what happened next. Ankiel went back to the minor leagues and eventually developed a knack for hitting, which is fairly unexpected and unheard of for most pitchers. Day in and day out, he honed his skills. He woke up every day and committed to becoming a better fielder and hitter. People spend their whole lives just practicing on their hitting and fielding, only to discover that they’re just not fast enough or strong enough to muscle a pitch over the wall. No one would’ve thought poorly of Ankiel if he shrank from the situation and went into some other line of work. But he didn’t. He treated his failure as an opportunity. He learned to hit and to hit well. In fact, he hit well enough to earn his way back to the major leagues as an outfielder. Just to give you some measure of how wild this is, consider that he’s the only baseball player since Babe Ruth to win ten games as a pitcher and hit more than fifty home runs. Incredible.

I know, I know—rah-rah stories are great. But no one wants to hear a rah-rah story when they fail. Although, I have to admit, reading “The Man in the Arena” is worthwhile every single time.

Regardless, if there’s anything you take from anything I write anywhere, please take this to heart:  Failure is feedback. Failure is not a measure of who you are. It’s a measure of whether or not the tactics you employed worked. That’s not to say that failure doesn’t help facilitate some self-reflection. If I didn’t convince a judge of my position in a motion hearing, it might be because I applied the wrong technique, because the Judge doesn’t like me, or because I tried to argue the Motion with a cat filter on my Zoom® video. My point is, there’s always time for healthy self-reflection, but just because you fail doesn’t mean that failure reflects poorly on yourself.

The last time I lost a trial, I was fairly crushed. I had spent a lot of time with this client, and she trusted me to take her case when I was a young know-nothing attorney feeling my way around in the dark. The day after the trial, I sat down with another attorney who observed the trial and asked her to list all the things I did wrong. She wasn’t ready to respond or maybe was embarrassed to, so I broke the ice by saying, “Ok, I’ll go first; here’s ten to fifteen things I think I did wrong.”  Then we went through the trial moment by moment and considered how I might take lessons from that embarrassing loss and hone my skills. Maybe I was better off bringing in co-counsel to do voir dire in the future, and maybe my strength was closing and witness preparation? Maybe I should hone in on certain skills and develop those while leaning into others who had strengths in other areas? All of these thoughts and conversations were productive. The one thing I knew was that although I had failed my client, I was going to fail up and not down.

When failure strikes, and it will strike if you do this long enough, call me if you need to chat. Or call a friend. Lean on someone and talk through what it feels like and what you might do differently the next time. Maybe you got several bad breaks in jury selection, and your presentation was otherwise flawless, but the jury just was against you from the beginning. Maybe you made a crucial mistake, and it cost you big time. But afterward, you worked through it with a friend and just absolutely crushed it the next time an opportunity arose. Failure isn’t fun, and I’d prefer that none of us ever felt it. But when we do fail, remember to define the failure instead of letting the failure define you.