When Walter “Fritz” Mondale lost to Ronald Reagan in 1984, he is said to have asked George McGovern, who lost to Richard Nixon in 1972, “Tell me, George, when does it stop hurting?” To which McGovern answered, “When it happens, Fritz, I’ll let you know.”
Watching Mitt Romney’s concession speech last night, I was reminded of something that we litigators, if we’ve been doing it long enough, have experienced first-hand: losing hurts. Losing really hurts.
It’s funny how losing a case occupies a vast deal more mental real estate than winning. I couldn’t tell you the names of all the cases I’ve won or how many. But I could tell you without thinking how many cases I’ve lost, the names of those cases, the witnesses, what the judge’s face looked like, the faces of the jurors, and what I was wearing when the verdict was read.
Why does losing hurt so much? I think it’s because we ascribe the result to our performance. If we lost, we fear, it must have been because we screwed something up.
Why do we enjoy winning so much? I think it’s also because we also ascribe the result to our performance: if we won, it must be because we are great.
It’s nice to feel great. It’s less nice to feel like we screwed something up. But here’s something I’ve learned, after litigating my share of cases: lawyers are better advocates, make better judgments, and give better counsel when they are able to detach their ego from the result.
Clients sometimes do not understand this. They want a litigator who is “hungry to win.” And of course litigators should care about the result just as much as their clients do. But when a lawyer wants to win for his own glory, something happens: he loses perspective. He starts to mistake his own interests for that of the client’s. And then he cannot advocate for the client’s interests, because he cannot distinguish between the client’s interest and his own.
As advocates, we owe it to our clients to recognize the line between advocacy and self-interest and not cross it. What is a win for you may not be a win for your client. As Voltaire said, there were only two times he was ruined: the first was when he lost a lawsuit, and the second was when he won one. I imagine his lawyer had a different perspective.