Pep Talk: What If You’re Probably Going to Lose?
I have it on good authority that litigants, on average, lose half the time. Some face even stiffer odds: Their claims entail crushing burdens of proof, or they face hostile jurisdictions that dim any realistic prospect of victory.
If you find yourself on this heavy end of the see-saw, don’t despair. True, you can’t manipulate the result. But guess what. Your opponent can’t either. The best anyone can do is to enhance the probability of winning.
Actuaries, gamblers, and quantum physicists all agree: Our lives are made of probabilities. Very few things are certain. Want to avoid a heart attack? No guarantees, but if you exercise and maintain a healthy diet, you can minimize the odds of keeling over.
So it is in litigation.
If you’re an appellant, your generic odds of prevailing are only 15 percent. If you write a brief that improves those odds to, say, 20 or 30 percent, you’ve done your job even though you’re still likely to lose. Things could get even better if your opponent, falsely believing that victory is certain, does a half-hearted job. (You can improve those odds too, just by being polite.)
So let’s suppose you’re handling a case that you’re probably going to lose. Your first move ought to be a gut-check. Do you have a good-faith basis for relief? Have you counseled your client about the long odds you face?
If so, it’s just a matter of hitting it as hard as you can. Your job isn’t to dwell on the generic odds of winning, it’s to enhance those odds. A well-written brief will do this every time. Develop the best arguments you can, and present those arguments in the best brief you can write. If you lose, it won’t be because of you.
And take heart: Every litigant who ever won a difficult case stood in your shoes and prevailed over the same daunting odds you face today. Do what these other litigants did. Manipulate the probabilities in your favor, and stop worrying about things outside your control.
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