We had worked on the case for four years and believed strongly that not only were we right but that the case was important. It was a falling merchandise case against a major retailer that was not following its own procedures for storing heavy merchandise. This practice endangered not just our client, but every shopper who entered the store. We had prepared for trial and had spared no expense or time. We tried the case for four days and looking back likely would or could change very little about how we tried it.
And yet, when the jury returned after deliberating for eight hours, something felt wrong. One particular juror looked downcast. The other jurors avoided my gaze. After the courtroom deputy read the verdict, I sat dumbfounded with the realization that the jury had ruled against us and in favor of the defense. It felt like a gut punch and a renunciation of what I thought was right.
I sat for the next thirty minutes in my car without saying anything, just appreciating the silence. Throughout the remainder of the day, I questioned our strategy, our assumptions, and my own ability. It felt very raw, cataclysmic, and personal. So what do you do in the face of a major loss or failure?
You do two things: 1) You realize that you cannot control outcomes, only the process and 2) You learn from the failure and improve. As to the first point, life is full of so many variables and uncertainties that you cannot predict or control them all. The best you can do is to increase your odds.
Great coaches teach this principle. Nick Saban talks about “the process” and has Alabama’s football players focus on improving their performance on every play. John Wooden who famously began each basketball season by instructing his players on how to put on their socks said “Do your best. This is success.”
This idea also runs through the work of authors like Ray Dalio, in Principles, Annie Duke in Thinking in Bets, Nassim Taleb in any of his books but especially Fooled by Randomness and The Black Swan, and by Daniel Kahneman, in Thinking Fast and Slow. Of course, Kahneman mainly highlights probabilistic thinking as a way of overcoming biases.
The second point is to learn what you can and move on. The event doesn’t define you. We are all fallible. You must have the courage to look at the event and yourself realistically. You must embrace “radical truth” in the words of Ray Dalio or as Marcus Aurelius would say:
“Salvation in life depends on our seeing everything in its entirety and its reality, in its matter and its cause, on our doing what is just and speaking what is true with all our soul.”Meditations of Marcus Aurelius, Ed. and Trans. by C.R. Hanes, at p. 339, Loeb Classical Library (Harvard 1930).
To do this we must confront our faults and mistakes and this is hard. As Dostoevsky has Alyosha say in The Brothers Karamazov, ” …nearly all clever people are fearfully afraid of being ridiculous, and that makes them unhappy.” In our plastic social media driven world, we have become more prone to act perfect, deny our faults, and find faults with others.
And so it can take courage to learn. “A man goes to knowledge as he goes to war, wide awake, with fear, with respect, and with absolute assurance.” If you have the courage to be wrong and to learn from it, you can have the confidence and determination to know that even with your failures you are advancing toward your goal.
As I write this, I am awaiting responses to the juror questionnaires that we sent out. We will take the responses, look at them and learn what we can. I have also been thinking about new strategies for investigating and uncovering evidence, making our processes even better and more robust, and new ways of conveying the truth. None of these things will guaranty success, but they will guaranty that we continue to get better and better. In the end, isn’t this really what life is all about?