On Losing

• Pages: 20-21
• Date: 01 January 2025
• Published date: 01 January 2025
• Author: Hon. Carl A. Aveni
• Subject Matter: Derecho Público y Administrativo

he verdict came back three days after delibera-

tions began, two weeks after the jury was sworn,

and two years after the complaint was rst led. It had

been a hard-fought case from the beginning, with the

full array of discovery and motions practice, culmi-

nating in a well-litigated trial. The lawyers, each in the earliest

middle part of their career, had handled themselves well, sug-

gesting bright futures ahead. And substantively, the thing was

a jump ball. Depending on which witnesses the jury believed

most, it really could have gone either way. Not that you could

tell from the lawyers’ faces, however, as the jurors led back

into the room. Both leaned forward in condent anticipation.

It didn’t last. By the time the jury was discharged, the los-

ing counsel was slumped with his head in his hands. He looked

shattered and disoriented as he left the courtroom, shufing

out well behind his client. That was several years ago, and I

haven’t seen him since. But I think about him often and how

unprepared he seemed for even the remotest possibility that the

case wouldn’t go his way.

That was a sort of failure in its own right. It’s not enough

for a lawyer to prepare and try the case skillfully, putting it

on the best trajectory for the best outcome. At every stage,

lawyers are also duty-bound to help their clients understand

On Losing

By Hon. Carl A. Aveni, Litigation News Asso ciate Editor

© Getty Image s

the risks as well as benets of going forward. By the time of

trial, most civil cases are a zero-sum game, in which each side

controls only parts of the process, and with limited insight into

the jury’s actual perceptions. Which means that even seemingly

great cases, with favorable facts, credible testimony, and per-

suasive lawyering still sometimes will take a funny bounce. If

you try cases often enough, sooner or later, you’ll get hit by one

that you didn’t see coming. Great trial lawyers have learned to

work through those tough moments with the same composure,

professionalism, and focus as they do every other part of the

representation.

Getting Over t he Psychology of Loss

Not that it’s easy. Get most seasoned trial lawyers talking

about their careers, and they’ll likely tell you that they more

viscerally remember the sting of their losses than the elation

of their wins. In fact, we’re hard-wired to think that way.

Neuropsychologists and behavioral economists describe this

phenomenon as “loss aversion”—a cognitive bias recognizing

that, as measured from a common baseline, people experience

pain from losing almost twice as intensely as they experience

pleasure from an equivalent gain. And while the research is

still evolving, it seems that test subjects also register loss aver-

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Published in Litigation News Volu me 50, Number 2, Wint er 2025. © 2025 by t he American Bar A ssociation. Re produced with per mission. All righ ts reserved. Th is information or an y portion there of may not be copied or

disseminated in an y form or by any means or s tored in an electro nic database or re trieval system wi thout the express w ritten consen t of the American B ar Associatio n.