By Dr. Ken Broda Bahm:
After a tense few days of states counting votes while the public kept refreshing the CNN map, the 2020 Presidential Election has finally been called. And at least in the initial aftermath, we have seen starkly different responses from President-Elect Biden and President Trump. As the victory emerged from Pennsylvania and Nevada, Joe Biden made the traditional appeals for unity and national purpose, along with addressing the need to work together and defeat the pandemic in the wake of a bruising few months. Donald Trump, on the other hand, signaled in his news conference and his continuing Tweets that he will not concede, but will fight through the courts on the basis of as-yet-unsubstantiated claims of electoral fraud. It could be a rocky transition.
Any competitive endeavor, including litigation, involves planning for both wins and losses. My personal belief is that if any legal professional claims to win every case, that probably just shows that they aren’t taking the right cases. Anything truly worthwhile involves the possibility for both success and failure. So, litigators need to prepare, and help their clients prepare, to be humble in response to victory, and to show some grace in the face of defeat. In order to preserve our own personal and ethical capital going forward, and to show due respect for the process, it is essential that any result is met with tact and dignity. In the present moment, I think there are three questions that should be asked of both sides, winners and losers, in political and courtroom battles.
What Can I Learn?
Whether you came out ahead or behind, the question that should be asked by advocates is, “What can I learn from the experience?” For Democrats, for example, the result was closer than expected, and the party is trailing or losing ground with some demographics. So the question is, how can their message be more inclusive and more reassuring to the ideological center? For Republicans, the question going forward is, how, or whether, they can retain the energy of an electrified Trump base while at the same time making their brand more palatable to a majority across the country? We can guarantee that both parties will take a hard look at these results.
Litigators should also focus carefully on what they could have done differently or better. One of the best ways to look at that, I believe, is to conduct a systematic post-trial interview of excused jurors where the venue and the judge allow that contact. By “systematic,” I don’t mean a quick chat between the attorneys and dismissed jurors in the courtroom; rather, I mean a structured interview conducted by someone the jurors perceive as a neutral. When talking to attorneys, jurors can be reluctant to share because they know the attorney can counter anything they say. But with a neutral party, the interview can get past the jurors’ general perceptions and dig into the detail of how they processed specific issues, items of evidence, and witnesses.
How Should I Communicate?
Winners should know not to gloat, and losers should know not to whine or to deflect with excuses. That is true in the political world, and true in the courtroom as well. So, at least while the eyes of others are upon you, save your reactions until later: no high-fives or scowls in front of the judge or jury.
More practically for litigators, there is also the need to explain the decision to clients. Particularly in the civil arena, the verdict may be something in between a win and a loss, so an attorney’s role doesn’t end with the verdict. They still play an important role in helping their clients understand and process the result.
Finally, there is also the need to communicate with the other side. Whether you won or lost, I think it helps to ask yourself what you can honestly compliment about what the other side was able to do in court. I remember discovering early in my career that, among the attorneys at least, true hostility is the exception rather than the rule, and that most attorneys are able to keep things civil, or even friendly, with the other side. That is something that’s good for the soul.
When Should I Fight On?
In both law and politics, the process continues, at least in theory. Election results can be contested, and cases can be appealed. President Trump has promised to fight the election results wherever possible, though legal analysts across the spectrum have noted that the cases contemplated so far do not seem to have strong merit or a realistic chance of changing the election result. We will see if it is honored this year, but the tradition has been that, for the country and the candidates’ own reputation, a concession should occur when there seems to be no legitimate or realistic path to office.
Good lawyers know to fight on only when it makes sense to do so. And when a client insists that you “do something,” it becomes the attorney’s role to advise their client on what is rational and what is realistic. In professional malpractice cases, for example, some doctors after winning their case will want to counter-sue the plaintiff based on the time, anguish, and expense of the suit. But that is almost never a good idea, and the attorney’s job is to tell them that. Anything filed with the court should be able to pass the “straight face” test. It can be a low-probability result, but the lawyer should be able to say with a straight face that there is a reasonable case to be made.
In both the realms of politics and law, there comes a time for finality, closure, and moving on. Once you get to that point, do it with dignity.
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Other Posts on Winning and Losing:
- Look Like You’re Winning (Part Two)
- Learn from “Joe-mentum”
- Pay Attention to the Pendulum
- Lead When You’re Losing
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