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Failure: An opportunity to find success

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Failure to Success

As a law student, whether you’re gunning for a good grade or entering a competition, you’re normal if you fear failure. We who pursue a career in the law worry about missing deadlines, saying (or writing) the wrong thing, or failing to make a good impression on someone who could be important to our career.

Sometimes, however, failure can be a good thing. It helps us to learn crucial lessons about practicing law and about ourselves. In fact, sometimes a failure can put you on the path to success, as demonstrated by these lawyers’ tales of mishaps turned into learning opportunities.

Why did I even go to law school?

It was fall 1994, I had just finished taking the bar, and I had no job—no job whatsoever. My summer clerkship ended with a phone call notifying me that the large firm I worked for had lost its biggest client, and it was hiring none of its seven summer associates. The 3L market that year was terrible, and I rapidly entered that “worst nightmare” for law students—graduating from a good law school with good grades, but with no job and no prospects. It took me three months of pounding the pavement to find my first part-time legal job and another three months of networking to land a position as an associate in a midsize firm. And even when I was finally employed, I felt the stigma of this setback when I compared myself to my classmates in large prestigious firms.

Lawyers perceive themselves to be good judges of character. We check the boxes on potential hires, adversaries, and peers. When anyone—including ourselves—fails to meet those standards, we are harsh critics. But having worked my way up the ladder—I’m now a partner at a law firm in Cleveland—I’ve seen countless attorneys who have succeeded without meeting this ideal, so much so that I’ve finally concluded it didn’t make much sense in the first place.

Every career path involves adversity. I often say that everyone gets hit by the bus—the question is which bus. Some adversities you simply cannot control. But there is one that you have a lot of control over—your own perception of your supposed failures. The sooner you can let go of the self-doubt, the quicker you open yourself up to real opportunities. Success is available for everyone, not just those who were lucky enough to avoid the bus.

Jeffrey Brauer is a partner at Hahn Loeser & Parks LLP in Cleveland, Ohio.

Who is taking this deposition again?

My biggest professional failure was trying to be someone else during a deposition. I had seen, and been instructed by, a senior lawyer who was very good at what he did. He had a particular style. To say it was aggressive would be an understatement. During one deposition, I tried to emulate him, and tried to get everything completely nailed down. Naturally, I “squeezed too tightly,” and what was a pretty good—but not perfect—answer slipped through my fingers. As a result, I ended up with nothing.

Fortunately, I learned from that experience that I have to be myself, and I have to do things consistent with my personality and my own style, not the style adopted by someone else. My failure at that deposition turned into one of my more significant professional compliments a number of years later when I was trying a case with that same lawyer, and I presented the testimony of a rebuttal expert. I did it in a way that was almost the complete opposite of the way he had presented a different expert during our case in chief. At the end of the testimony (which worked very well, if I do say so myself), he turned to me and said “Huh. I didn’t know it could be done that way.”

Aaron Krauss is a Member at Cozen O’Connor in Philadelphia, Pennsylvania.

Deadline? What deadline?

It was my first case in federal court. When our opposing counsel served his proposed jury instructions and other pre-trial materials on us, the partner with whom I was working forwarded them to me and asked “We served ours this morning, right?” My heart raced. I replied that no, we hadn’t served them, and in fact, that wasn’t something the partner had asked me to do. The materials weren’t ready. Would our client lose the opportunity to submit jury instructions? I was terrified.

I tried the only thing I could think of to do: I called opposing counsel, explained that we dropped the ball, and politely asked for an agreement to exchange the pretrial materials on a later date. He was understanding, and agreed to an extension that allowed us to complete the materials in a professional manner.

In the aftermath of this event, I developed a habit of triple-checking case deadlines and ensuring that they were calendared not only on my calendar but also on the calendar of my assistant. I learned a more important lesson from this experience, however. I realized that, even though litigation is an adversarial process, lawyers are also professionals. If you candidly admit that you made a mistake and ask for a professional courtesy, that request will often be met with professionalism and courtesy in return.

Holly Williams is an attorney at Lee Smart in Seattle, Washington.

Wait, what did you just say?

Early in my career, I showed up for the deposition of a plaintiff in a minor slip-and-fall case only to learn that the party that noticed the deposition failed to notify one of the other defendants. Counsel for the party that was not served objected to the deposition taking place in his absence, and the deposition did not go forward. Because I was there anyway, with my exhibits and the plaintiff both present, I decided to ask the plaintiff to point out the location of where he fell on a photograph I had with me. That was the main piece of information that I had wanted from the deposition, because my client owned a portion of the property shown on the photograph, but not the other portion. The plaintiff showed us on the photograph where he fell, and it was on the property that my client didn’t own.

For whatever reason, the plaintiff’s deposition was never rescheduled, and the case proceeded to an arbitration hearing. When cross-examining the plaintiff, I showed him the photograph we had examined at the canceled deposition, but to my surprise, he pointed out a different location for his fall. And it made all the difference in the case, because now he claimed to have fallen on my client’s property. Knocked back on my heels, I tried to impeach him with his previous response to my question about where he fell, but without a record of his prior statement, my attempt wasn’t effective. It was rather embarrassing to be blindsided, especially in front of my client.

I learned two lessons from that experience: a small lesson and a big lesson. The small lesson was never get substantive answers from a litigant off the record. The big lesson, however, was much more important for my career: I learned to expect the unexpected. You should never be confident that you know what your opponent will say. Always have a plan B ready in case you don’t get the answer you want or expect. That lesson has served me well in my subsequent cases.

Bill Hill is a partner at Klehr Harrison Harvey Branzburg LLP in Philadelphia, Pennsylvania.

How about just one witness?

When I was a mid-level attorney, I was assigned to a fast-paced case where our client sought a TRO and a preliminary injunction. We intended to examine four hostile witnesses at the injunction hearing. At the time, I was eager for any opportunity to be on my feet; as a litigator I wanted to examine trial witnesses, make arguments, and take depositions. Instead, I reviewed documents, drafted motions, and prepared memos and outlines. A colleague suggested simply asking the partner handling the matter if I could examine “just one” of the four witnesses at the hearing. I knew he would never agree, but I asked anyway.

As expected, the answer was an immediate “no.” He asked me if I knew why the answer was “no.” I admitted that it was because I didn’t have a second of courtroom or deposition experience, and our client would be sitting in the back of the courtroom. I gave it a shot, but resigned myself to the fact that I would be preparing just another hearing outline. The next day, however, the partner told me he was reconsidering and to prepare one of the outlines as if I were doing the exam, but also that the answer remained “no.” I prepared the outlines. Eventually—after days of back and forth—the partner finally agreed to let me take one witness. Incredibly, the case settled as I stood at the lectern, mouth open, about to ask my first question.

Although my first attempt at a “speaking role” failed, I learned that persistence in actively seeking out opportunities to exercise my advocacy skills effectively creates those opportunities. In the years since, I have taken many depositions and handled numerous arguments. Each time, however, the opportunity was not just handed to me. I had to push and keep pushing. If the partner handling the case said I couldn’t take the first scheduled deposition, I’d ask if I could take the second, or the third, or the fourth. I’ve only been able to do the things that I love to do as a lawyer because I persisted in asking for opportunities, something I learned from that first failed attempt to cross-examine just one witness.

Benjamin Bleiberg is counsel at Chadbourne & Parke LLP in New York, New York. 

This article is an edited version of an article that originally appeared in the Spring 2017 issue of TYL magazine, volume 21, number 3, published by the ABA Young Lawyers Division. ©2017 by the American Bar Association. Reprinted with permission. All rights reserved. Read the full version of this article and learn more about the ABA Young Lawyers Division.

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