Learn From Your Wins and Your Losses

By Dr. Ken Broda-Bahm: 

It has been an up and down week for the Obama administration in the Supreme Court. On Monday, the Justice Department scored a mixed result on Arizona's immigration law preserving the "papers please" policy that Arizona intends to apply to immigrants in that state, allowing police officers to demand proof of citizenship from those who are stopped. Then, this morning, the Court gave a substantial lift to the White House by preserving the individual mandate, a key provision in President Obama's healthcare reform legislation under Congress's taxation power. Commentators have already described the result as "a landmark decision that will impact the nation for decades" on the the signature domestic legislation of the Obama presidency.

The implications of the 193-page decision are still sorting themselves out, and others will write voluminously on the political ramifications, as well as the effects of the decision on the U.S. healthcare system. In keeping with the focus of Persuasive Litigator,however, my first thoughts tend toward the messages for litigators. In this case, I believe that there are some important lessons now, with more sure to emerge over time. Specifically, the takeaways from the verdict and the process relate not only to a political and social milieu that has a direct effect on how today's jurors see litigants, but also bear upon the more general question of how attorneys should learn from, build off, and even 'spin' the wins, the losses, and the mixed results.

Because the Court also rejected the administration's central argument that the individual mandate is constitutional under the commerce clause, the result was perilously close to a loss for the law, and that actually generated more than a few "Dewey Defeats Truman" moments in a slew of erroneous early reports this morning that the law had been overturned. Working within the civil or criminal court systems can sometimes mean taking on the difficult case, or the noble but flawed cause. Those who never lose have probably gotten to that point by avoiding the truly tough cases that matter the most. The President, for example, could have downplayed, deferred, or incrementalized on the issue of healthcare. Instead, he rushed in where other administrations have feared to tread, and despite today's decision from the Court, he is still left with a bruised approval rating on healthcare. And from the states' view, of course, it is no fun to lose an important case. But as we say after mock trials, the lessons in losses can be more important than the lessons of a win. Viewed through the lens of today's historic healthcare decision, I think that there are three important lessons that apply to trial lawyers.

Lesson One: Beware of the Bigger Bogeyman

Even before the Court's decision, the administration's healthcare plan arguably lost the greater share of public opinion. The reason is one that many plaintiffs' lawyers may be familiar with: You go into trial taking aim at what you take to be the biggest bogeyman, only to see a jury take your case away due to fear of an even bigger bogeyman. You might be crusading against the bogeyman of corporate negligence, but undone by the jurors' view of a bigger bogeyman in the image of lawsuit abuse. In Obama's case, he was crusading against the capriciousness and greed of the health insurance industry, but was ultimately undone by the bigger bogeyman in the image of big government. As Ball & Keenan have written in "Reptile: The Manual of the Plaintiffs' Revolution," it helps to acknowledge, speak to, and ultimately shape your audience's fears. What you can't do is rest on the simple assumption that your audience will respond to your one chosen fear.

In the case of healthcare reform, perhaps the main reason that the law lost the public's vote, albeit not the Court's majority, is that it did not speak to the reality that Americans now fear big government more than they fear big corporations. A Gallup poll earlier this year showed that just 29 percent are satisfied with the size and influence of the federal government, a figure that has just edged past the same attitude relating to corporations. The private corporate-controlled healthcare market has few fans, but Americans seem to have reacted to the cultivated image of a "federal takeover" with even greater suspicion. This has implications for legal cases that pit a company against a government regulation: The government in that case might be the bigger villain in the public mind.

Lesson Two: Roll With the Punch

The reactions to the Supreme Court's ruling are predictable from all quarters. While the White House celebrates, Republican National Committee Chairman Reince Priebus has framed this as a new reason to vote Republican in November: "On Election Day, we must elect Mitt Romney and put America on the path toward a brighter economic future and successful healthcare reform."

It is important in the case of any loss to adapt your response and take away at least some of the sting. Lose an objection at the bench? Walk back to counsel table with a confident expression. Lose part of your case on summary judgment? Celebrate how that forces you to focus more clearly on what remains. Like politics, litigation these days tends to be more of a long-term campaign rather than a single battle. I once observed a three and a half month trial, and in any campaign that long, there are bound to be some bad days. After one particularly bad day, I remember lead counsel saying as we all emerged from the courthouse, with our heads hanging low, "Every day is a contest. We will lose some of the days and win some of them...as long as we win more often than we lose, we are doing fine." Trial and settlement are in many ways a "confidence game," and the need to monitor, maintain, and shore up your own confidence can be as important as anything else.

Lesson Three: Learn, Don't Just Move On

I've noticed one tendency in lawyers after a loss: they don't dwell, they just move on to the next case. On the one hand, that may be a psychologically self-protective tendency. Or on the other hand, it may relate to the realities of billing -- the clock has stopped, after all. But whether it is billable or not, I believe that there are two steps that should be taken at the conclusion of any case, but especially after a loss.

1. Debrief with your team. In an atmosphere free from accusation and blame, meet to discuss what went wrong and why. Work to truly understand the factors that prevented you from getting to your best result. If you don't fully understand these factors, you risk repeating them in your next case.

2. Conduct a post-trial juror interview. There is no substitute for hearing the evaluation straight from the actual fact finders. But instead of just contenting yourself with a few words in the courthouse, take the extra step of engaging a trained interviewer who is seen as a neutral by the former juror. An hour or more on the phone, or in person, can yield a wealth of knowledge you can apply in your next case.

For congressional Republicans and others opposed to the act, you can bet that the postmortem is already well under way, and probably includes a plan for another run at overturning the healthcare legislation down the road. In legal campaigns like this one, it tends to be a marathon rather than a sprint.

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Other Posts on the Supreme Court's Healthcare Arguments:

• Practice the "Three P's" of Oral Argument:  The Example of Paul Clement
• Aim Your Oral Argument at Your Judge's Motivating Principle
• Oral Arguments: Cut In To Your Case Before You're Cut Off By Your Judge
• Don't Let Your Judge Reduce You to Absurdity

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Image Credit: Nick Bouck, Persuasion Strategies.