Personal Reflection. The advocate as loser

• Author: Jonathan Lisus
• Pages: 211-220

211

R PERSONAL REFLECTION | SUMMER 2011

e acae as ler

JONATHAN LISUS

Every time we advocates try a case, there must be a loser. Our

system is designed to create a loser and to ensure that the loss is

permanent. After all, most appeals are unsuccessful and defer-

ence to the decision at rst instance is the rule. This is unique to our

adversarial system of justice. It isn’t so in business (where second chan-

ces are encouraged), other professions or other forms of lawyering. No

doubt solicitors can make costly mistakes, but the context in which they

operate isn’t premised on causing an opponent to lose. And if their cli-

ents do “lose,” it’s likely due to an insured error, not because their lawyer

was bested in a duel.

This brute reality makes it tough to be a trial lawyer, which itself is

odd, because the certainty of loss is baked right into the process. It’s what

we sign up for. One would think that we would understand and internal-

ize this. Yet, of all the sacrices we make and the tests we endure– the

long hours, the dicult clients, the obstructive opponents and grumpy

judges– nothing tests us more than a loss.

Losing really rocks us. It knocks some of us right o our game and

into a career of motions, discoveries and mediations. And losing can be

bad for business. If we are trying cases, the spectre of losing– its conse-

quences for our client and future clients– hangs over much of what we

do. We either master it or it, us. Paul Brown, head coach of the Cleve-

land franchise that took his name, counselled his players: “When you