Keeping Tabs - Summer 2020

2. Practise what you preach: remind yourself
that litigation is risky. We constantly advise
clients that results cannot be guaranteed
in court. Yet we tend to forget that same advice
when we think about why we lost. If you want a
chance to win, you have to risk losing.
HOW I LEARNED TO DEAL WITH LOSING EVERY TIME I STEPPED INTO COURT
Sailing Through a
Storm of Losses
Annie Tayyab, Affleck Greene McMurtry LLP
After achieving some courtroom success in my first few years of
practice, in 2019, waves of losses began crashing down around me.
Motions, trials, appeals – the level of court did not matter. Nor did
the complexity of the issues. I lost almost every time I went to court.
I started to question everything: Did I work hard enough? Did I miss
something that would have made all the difference? Should I have
anticipated that I would lose and steered the client or the partners in
a different direction?
By the end of 2019, I was left wondering: am I a bad lawyer?
This question weighed heavily on me. I was anxious and my imposter
syndrome was getting worse.
It was not until I voiced some of my anxieties
that I realized that I was not alone in these feelings.
The first time I said it out loud – I’ve been losing
a lot lately and I am struggling to deal with it – I
was met with not only helpful tips for re-framing
my thoughts, but also empathy from peers and
friends who understood how I felt.
For the benefit of those who could use it, here
are a few tips that I received that helped me.
1. Do not equate losing with failure. The standard
for success is not winning, but knowing
that you did everything possible to give your client
the best representation. We cannot control
the facts or the law. If a loss happens for reasons
outside of your control, remind yourself
that you did everything you could to give your
client the best chance of winning. And, in the
right cases, you can appeal!
3. Not all losses are losses. Sometimes, you
litigate not just to win, but for some other purpose.
For example, the client may need an answer
to a question that was not clear in the case
law. In such a situation, the litigation is the battle,
but not the war. One of the goals is to win (of
course). But winning every step may not be the
ultimate goal.
4. Try to re-frame losses as opportunities.
Advocates are constantly learning and growing.
Embrace the growing pains. If you reflect
and decide that something could have been
done better, adjust your approach the next
time. If there was nothing you could do to
change the result, use this as an opportunity
to build resilience. And it always helps to have
some stories to share with colleagues. Use a
loss as a catalyst to start a conversation about
advocacy, or the substantive area of law you
dealt with, or the rules of evidence, or inherent
biases in the judicial system.
Everyone deals with losses differently. What
works for me may not work for you. So, if the
above tips do not speak to you, I have one final
tip, which does not come from mentors or colleagues,
but directly from me: talk to someone
you trust. Someone who speaks your language
(figuratively) and can help you navigate the confusing
feelings that you have to deal with when
you lose something you thought you could win.
It makes the world of a difference.
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