• Lead When You're Losing
  • March 3, 2015
  • Law Firm: Holland & Hart LLP - Denver Office
  • You wouldn’t know the results of last Fall’s congressional midterm elections from watching the State of the Union Address this past Tuesday. It looked for all like a victory lap for President Barack Obama: The economy is rebounding, the unemployed and the uninsured are down, and America has ended the two wars that have defined the past decade. The fact that only the smaller half of the body was applauding all of this did nothing to dampen the enthusiasm. More generally, the President is not doing bad in the role of a lame duck facing a Republican Congress. He is moving forward with executive actions on immigration reform, proposing bold initiatives in education, and his popularity is resurging to levels not seen in the past two years. But still, the fact remains that he and his party are on the losing side in current political calculations, and the vast majority of the proposals floated in the State of the Union Address - those that require legislation at least - aren’t likely to make it through a deeply hostile Congress. Still, the President's recent performance provides a good example of how one can lead even while on the losing side.

    As I watched the State of the Union on Tuesday, my thoughts turned (as they often do), to legal persuasion. Litigators are frequently on the losing side as well. Anyone who says they win all their cases are either fronting, lying, or doing a really good job of avoiding the hard cases. The loss can be difficult after a verdict, but even harder is the knowledge of a likely loss while you are still trying the case. That doesn’t happen very often with juries (because anything can happen with a jury and hope springs eternal). But it can be an issue with a bench trial: The rulings, as well as the judge’s implicit or explicit reactions, can make it abundantly clear that your chances aren’t good. A litigator in that position of loss can take some lessons from our chief executive: Even when you’re on the ropes, there is still a lot you can do.

    You Can Still Make it As Difficult As Possible

    President Obama knows Republicans aren’t likely to pass many (or any) of the big ticket items he proposed on Tuesday. Free community college, higher rates on the wealthy, and a higher minimum wage aren’t anywhere near the “to do” list of the new Congress. But Obama can increase the pressure, and he can make congressional resistance to these ideas a little less popular. In similar fashion, the litigator can focus on the areas known to pose the greatest challenge to the other side. Instead of focusing on arguments you know the judge has already considered and rejected in the briefing, focus on those areas where the other side is having the most difficulty. An adverse result might still see be in the cards, but by destabilizing some of those expectations, you might just raise a question mark in your factfinders’ minds.

    You Can Still Limit the Loss

    On the morning after the midterm elections, Democrats knew there would be a realistic chance that some of the administration’s trophy achievements - like the Affordable Care Act - are now more likely to be rolled back. By signaling a willingness to revisit the law, but a resolve to protect the core of it with a veto pen if necessary, the President signaled a goal of limiting those losses. In similar fashion, a civil defendant who sees liability likely to go down the drain, can turn the decision maker’s attention to damages. As we have frequently observed, a strong liability jury is often not a high-damages jury, and the notion of what counts as a “win” can depend greatly on the context.

    You Can Still Set the Agenda

    With the exception of those that rely on executive orders, the President lacks the power, as well as the votes, to pass the agenda he is proposing. But as Teddy Roosevelt observed, the power of the U.S. presidency doesn’t begin and end with lawmaking, but is also a “bully pulpit” for setting the agenda for the national conversation. The speech on Tuesday doesn’t make the law, but it does do a great job of determining what we will be talking about on Wednesday. Lawyers have a similar agenda-setting function, and can use the proportion of time spent on a point to determine how much salience that issue might have for the decision maker. In thinking about the shape of the resulting decision, or perhaps in thinking about the appeal, part of the litigator’s agenda-setting goal is to ask, “What do I want this judge to spend most of her time thinking and writing about?”

    You Can Still Pave the Way for Next Time

    As Obama acknowledged, he has "no more campaigns to run," a line that brought Republican applause followed by the President’s best ad lib of the night: “I know that because I won both of them." But with no more elections and little chance of legislative victories anytime soon, what other goal could he have? Paving the way for Hillary is an obvious answer. By emphatically advancing initiatives that he knows Republicans will oppose, he is framing the debate for the 2016 campaign. Litigators have a similar opportunity to think long-term. You might lose this case, but chances are you will have a similar case in the future. Even if your current cause ends up being a lost cause, you can still learn something that will benefit you the next time around. It’s a short-term battle, but it is also a lifelong campaign.