I am big fan of the Winter Olympics and particularly love the ski events. I was psyched to watched US Olympic gold medalist Mikaela Shiffrin compete in possibly 5 events. Then I was horrified to see her fall in the first few seconds of her two favorite events the Slalom and the giant slalom and then come in 9th in the Super G. But it was her attitude and response in her post interviews that made me want to write this blog post because I found her inspirational to me as a trial lawyer and for all less-experienced trial lawyers especially. Here are my top 5 takeaways, one for each of the 5 Olympic Rings (the lawyer in me first compels me to say all quotes are paraphrases, ok, don’t nitpick me if I got them wrong. Its the gist I’m shooting for):
- You will fail. In her interviews she made clear : “I am not perfect No skier is. Falls like this happen and are part of the sport.” If there is one thing I hate its when I hear a lawyer brag that they never lost a trial or when a judge tells me to be on guard because my adversary never lost a trial. My response is always “Show me a lawyer who never lost a trial and I’ll show you a lawyer who never really trued a case.” Never losing probably means you either settled or dropped cases you had no confidence or certainty in. It means you never were forced by circumstances to try a case you would rather not try. It means you never took on a challenge on behalf of a client. You never took on Goliath. You never championed the little guy. You never realized that even in losing some victories can be obtained. Maybe the jury awarded an amount more favorable than what had been on the table. Maybe they threw out the top counts in a criminal indictment and only convicted on a lesser charge. Maybe your client showed the other side that they were not scared to take them on and it might give pause to the adversary on the next battle. Or hey maybe you were just on the wrong side of the issue. But whatever the reason, you will fail. It will hurt. Shiffrin owned up to it. In her interview after her second fall she said she was surprised at all the support of her after her failure. And she said “And that’s what it was. It was my failure. But that’s part of sports.” If you want not to fail, then never push yourself.
- Failure is an opportunity to learn Shiffrin said her first two events this Olympics were “an important learning experience” even after all her successes. So true, so on point. I learn more from my losses than my wins. Once I win I rarely think about that trial again. I lost my very first trial 30 plus years ago and I can still tell you every mistake I made. Narrator: “And he made many.” And it was a doozy. I could have settled for $35,000. and I lost $500,000. (as my then boss Lenny Olarsch, head of TOrts fo rthe City Law Dept said when I had to report the verdict to him -which was my first time ever speaking to him – he said “You just a lost a f+cking playground! Cuz of this case some place in Brooklyn is not gonna get a playground now.” I can still remember that lonely painful walk from the courthouse back to the office. When I coached my kids’ teams and we had a tough loss, I regularly told them : You know that feeling you have right now? Remember that. Think about it right now and be able to recall it before every big game so that you do your best not to feel it again.” Shiffrin sat by the side of the hill for many long minutes after her second fall. Not feeling sorry for herself. Probably feeling like she let a lot of people down. (And for lawyers that’s the hardest – its losing on behalf of a client. Never forget that. You’ll have other trials but your client may not ever have another shot.) But more than likely she was trying to capture the feeling and re-live the event and the prep. And thinking about what went wrong to learn and improve by it. And what could you have done before the loss to have prevented it.
- Preparation is key. In her interview after the third event, Shiffrin said that what she was most happy about was not just “not falling” but that “there were n surprises. My training runs prepared me for the snow, and the track behaved just like I thought it would.” When I each or train or write about trial practice I always say the most important thing to remember are the five Ps of good trial practice “Prepare, prepare, preparation, preparing and prepare.” Because if you properly prepared and if you prepared thoroughly enough then the loss will have far less sting. You will kick yourself less. You will be less annoyed and angry at yourself. And you will be able to look your client squarely and fairly in the eyes and say “Well we gave it our best shot. We could not have done more.”
- Sometimes its just not meant to be. Despite all the prep, despite being right, despite having the stronger position you can still lose. Why? Because you don’t try cases or ski races in an hermetically sealed vacuum. Sometimes you have a bad judge or one bad juror or an event occurs that al of a sudden reshapes the landscape. That’s why the Serenity Prayer works not just for addiction but for trial practice. God grant me the serenity to accept the things I cannot change, the courage to change the things I can change, and the wisdom to know the difference.” Also you may just come up against someone who was just plain better than you this trial or this race. That’s something I tell my law students all the time. You chose to practice in New York, the world capital of law. New York is the law capital of the world. Period. There are more lawyers here and more law is practice here. So naturally there are the world’s best lawyers here. Many times you will come up on an adversary yo never heard of or who no one in your firm ever heard of. And then you will realize (maybe too late) that they are a great g+d-d++ned lawyer. There are lawyers who in other States would be legendary – the exemplars of their State bar. In New York – and then even more so in the NYC metro area – they are just another great lawyer with a great practice and a great trial style. Get over yourself. Just keep improving and be that lawyer that surprises everyone.
- Public humiliation is inevitable. As Shiffrin said when asked about failing in such a grand fashion in a such a grand moment, “Its the Olympics, its the world stage. You want to win at this level, then you’re gonna fail at this level.” As I’ve said before on this blog and in other writings “Trying cases is like skiing and golf. They cannot be learned how to do well without public humiliation” The other aspect of that caveat is that once folks learn how be experts in those fields, they forget they were ever beginners and that they were ever horrible. So you will get no mercy.
Conclusion Mikaela Shiffrin is a champion. She is a role model. As she said after her second fall “No matter what. I’m still an Olympic gold medalist. I’m still a World champion. No bad result can take that away from me. So don’t feel sorry for me and don’t worry about me.” If my career as a trial lawyer ended with that first loss, I would still have been a trial lawyer for at least having tried a case to verdict. But what defines us – and what came to define me – was how you deal with that failure. After that first loss of mine, my direct Boss, Rose DeBellis, Chief of the Manhattan Trial Unit at the City Law Dept. told me “Don’t worry about what Lenny said. All he cars about sis what yo do going forward. He’s going to want to see if you get gun shy and are afraid to try another case. So just get back on that horse, take another verdict, and that’s all that will matter to him and to everybody else.” She was so right. I just worked harder, prepped more and tried every case I could get my hands on.
That’s why I love the Olympics. They are a test of individual strength, skill preparation and mental toughness. Which is also why I love being a trial lawyer. Thanks Mikaela, for showing me how it’s done.
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