PAGE 4 • THURSDAY, MAY 14, 2026
LOS ANGELES DAILY JOURNAL
The verdicts that follow trial lawyers home
By Baruch C. Cohen S ome courtroom losses do not merely wound the ego. They wound the conscience. Recently, a veteran trial attorney whom I deeply respect suf- fered a devastating defeat in a major and emotionally charged case involv- ing the police shooting of a 14-year- old girl. In describing the outcome, he called it “the most devastating loss of my career,” adding words that every seasoned trial lawyer immedi- ately understood at a visceral level: “I’ve lost cases and I understand why. I don’t understand this one… It’s non- sensical to me.” That statement captures some- thing the public rarely understands about trial work. What struck me was not merely the loss itself, but the uncommon candor, dignity, focus, and emotional resilience required for a veteran trial lawyer to confront devastating defeat without bitterness, excuses, self- pity or retreat. In a profession built around winning, there is something profoundly honorable about lawyers who can absorb heartbreaking loss honestly, stand upright inside the pain and still return to battle. Sometimes character is revealed more clearly in defeat than victory ever could be. There are verdicts a trial lawyer can accept, even in defeat—cases where the facts were difficult, the law unfavorable or the evidence im- perfect. Those losses hurt, but they still fit within the rational framework of litigation. And then there are verdicts that shatter that framework entirely—cas- es where experienced trial lawyers walk out of the courtroom unable to reconcile the outcome with the evi- dence they lived, the humanity they witnessed or the justice they believed the case demanded. Those are the losses that do not end when the jury is discharged. They fol- low the lawyer home. They linger in silence. They replay themselves long after the courthouse lights go dark. Some verdicts leave the court- room. Others move in permanently. The public sees the verdict, but the trial lawyer lives with what comes af- terward. They see headlines, cameras, sketches, reactions, celebration or criticism. What they do not see is the solitude that follows—the lawyer sit- ting alone replaying rulings, cross-ex- aminations, juror expressions, and
not align. Sometimes courage itself is the only victory. There are cases where standing beside a client to the end is itself an act of honor. What separates elite trial lawyers is resilience. After loss, the easier path would be retreat—safer cases, smaller risks, emotional detachment. But great trial lawyers do the opposite. They return to the arena, fully aware of how much it can hurt. That willingness is one of the most underappreciated forms of courage in the profession. Legacy is not defined solely by ver- dicts. It is defined by who took the hard cases, who stood against pow- erful institutions, who carried clients’ pain and who fought when defeat was possible or likely. History is shaped not only by those who win, but by those brave enough to fight. Trial lawyers are often seen as emo- tionally invulnerable. The truth is the opposite. The lawyers who move ju- ries most deeply are often those who feel pain most deeply themselves. Empathy is not weakness in trial work. It is fuel. It is what allows a lawyer to speak authentically about suffering, injus- tice, grief and dignity. And that is why losses cut so deep- ly. Because trial lawyers who truly care never leave the courtroom un- touched. Some verdicts may wound them for years. Yet despite the scars, they con- tinue returning to the arena. And perhaps that willingness to continue after devastating defeat is one of the purest forms of courage the profession will ever know. The public remembers verdicts. Trial lawyers remember faces.
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To stand before a jury and ask strangers to care about suffering re- quires the lawyer to care deeply first. Jurors detect insincerity instantly. So the most powerful trial lawyers do something dangerous: they expose themselves emotionally. They internalize the client’s grief, injustice, trauma and fear until the outcome becomes personally mean- ingful. That emotional exposure cre- ates vulnerability. When the verdict comes back wrong—especially in cases involving death, injustice or institutional fail- ure—the lawyer does not experience it only professionally. He experiences it personally, sometimes even spiritu- ally. The hardest losses are not about money or prestige. They are cas- es where the lawyer truly believed justice required a different result— where he believed the evidence, truth and humanity of the client would prevail. When that does not happen, some- thing inside the lawyer fractures tem-
strategic decisions, searching for the moment that might have altered ev- erything. They do not see the lawyer awake at three in the morning wondering whether one different phrase, one witness order, one objection, or one more minute of argument might have changed another family’s life forever. Nor do they see the emotional bur- den of trial lawyers who take morally charged, emotionally radioactive cas- es and place their hearts, reputations and clients’ hopes into the hands of twelve strangers. Because trial lawyers do not mere- ly litigate cases. The great ones ab- sorb them. Unlike actors, they do not perform with fictional consequences. Real lives collapse on the other side of the verdict. The case ends on the verdict form. For the lawyer, it often continues for years in the mind. There is something uniquely bru- tal about trial work. Most professions allow emotional distance. Trial work does not.
forward scar tissue that becomes part of their advocacy. That is why trial lawyers speak about losses with such gravity. Because defeat is not incidental to trial work—it is part of its emotional DNA. And yet, despite the scars, they continue returning to battle. Not be- cause they are fearless, but because they still believe the next jury may listen, the next courtroom may care and the next client deserves some- one willing to fight. One of the loneliest moments in law occurs after a devastating verdict. The courtroom empties. The jurors leave. The judge moves on. The pub- lic stops watching. But the lawyer remains, long after everyone else has gone. He replays everything, search- ing endlessly for what might have changed the outcome. But eventually, most lawyers learn a painful truth: sometimes you can perform brilliantly and still lose. Sometimes justice and verdicts do
porarily. Not ego, but empathy. The lawyer feels the client’s devastation as partially his own responsibility. That is the hidden burden of great trial lawyers. They carry losses dif- ferently because they carry people differently. Every devastating verdict leaves a scar, yet the great ones still walk back into the arena. What separates great trial lawyers is not just skill or intellect. It is their willingness to endure emotional dev- astation repeatedly without becoming hardened. They carry ghosts—verdicts that replay years later, questions they still ask themselves, moments of closing argument they wish they could redo, clients they cannot forget. These loss- es never fully disappear. The public assumes lawyers move on. They do not. Great trial lawyers never fully leave certain courtrooms. Parts of them re- main there forever. They dissect the loss, interrogate themselves, learn from it and carry
Baruch C. Cohen is an attorney at the Law Office of Baruch C. Cohen APLC.
The crisis of incivility requires immediate judicial attention
clerks and courtroom staff already op- erate at maximum capacity. Discovery disputes arrive in relentless waves, and emergency motions compete with criminal calendars, trials, dispositive motions and settlement conferences. California’s federal courts continue to experience some of the heaviest caseload pressures in the nation. Va- cancies have often remained unfilled for extended periods. Senior judges shoulder enormous burdens long after many would have retired completely. Meanwhile, discovery itself has be- come exponentially more expensive and contentious in the digital age. Massive electronically stored in- formation productions, metadata disputes, privilege fights, artificial intelligence review issues and co- ordinated MDL discovery have transformed what were once rela- tively manageable disagreements into sprawling satellite litigation. Against that backdrop, civility dis- putes are often viewed as second- ary matters that can wait. But none of those realities alter a central truth: when courts do not promptly confront litigation mis- conduct, the misconduct spreads. Bad actors carefully observe in- stitutional incentives. They know when a judge has no time to deal with discovery abuse. They know when chambers will push hearings months into the future. They know when sanctions motions are likely to die quietly. And they adjust their behavior accordingly. Unfortunately, professionalism codes and bar civility guidelines alone are insufficient. Lawyers inclined toward abusive conduct
months, or even a year, to be heard, if civility complaints disappear into already overburdened chambers, and if courts understandably prioritize dispositive motions and trial sched- ules, then the bad actor often wins by attrition. The result is predictable. Incivility metastasizes. The federal judiciary has long recognized that civility is not merely aspirational etiquette. It is essential to the fair administration of justice. Discovery cannot function if lawyers weaponize intimidation, harassment or obstruction. The Federal Rules of Civil Procedure contemplate cooperation, proportionality and professionalism. Yet many litigators now treat discovery as trench warfare precisely because meaningful consequences are so infre- quent and so delayed. The events before Senior District Judge Breyer illustrate why swift judi- cial engagement matters. Importantly, Judge Breyer accomplished this while serving on senior status and simultane- ously carrying one of the nation’s most demanding MDL dockets. The Uber litigation alone involves extraordinari- ly complicated issues, voluminous discovery and massive coordination challenges. Yet the court recognized something many judges privately ac- knowledge but cannot always opera- tionalize: Incivility itself threatens the administration of justice and therefore must be treated as an urgent matter, not a peripheral annoyance. Most federal judges understand this instinctively. The problem is structural, not personal. District and bankruptcy courts are overwhelmed. Magistrate judges face very tough calendars. Law
are rarely deterred by aspirational statements. They are deterred by immediate consequences. That is why swift judicial in- tervention is so critical. Speed changes incentives. When lawyers understand that discovery abuse may trigger an immediate hearing, expedited sanctions consideration, public rebuke, exclusion from pro- ceedings or referral to disciplinary authorities, behavior changes quickly. The overwhelming major- ity of attorneys, who already prac- tice professionally, benefit from that environment as much as judges and litigants do. Young lawyers notice this dynamic as well. New attorneys learn profes- sional norms not from civility codes framed on law office walls, but from observing what conduct courts ac- tually tolerate. If abusive behavior consistently produces strategic ad- vantage without meaningful conse- quence, the profession gradually in- ternalizes that lesson. This is especially true in multi- district litigation, where discovery disputes can influence thousands of claims and billions of dollars in ex- posure. MDLs create immense pres- sure on all participants. Without ac- tive judicial management of attorney behavior, the risk of systemic deteri- oration becomes substantial. None of this suggests that every heated exchange warrants sanctions or judicial intervention. Litigation is adversarial by nature. Lawyers are expected to advocate forcefully. But there is a profound difference be- tween zealous advocacy and conduct that undermines the integrity of the
process itself. The legal profession now confronts a genuine civility crisis. Nearly every experienced litigator can recount dis- covery conferences devolving into personal attacks, abusive deposition conduct, performative hostility or gamesmanship designed solely to increase cost and delay. Many judges see it repeatedly. Too often, however, the judicial system lacks the band- width to respond in real time. That must change. The federal courts cannot elimi- nate incivility entirely. But they can alter the incentives that sustain it. Prompt attention to misconduct, even in isolated cases, sends a message far beyond the individual dispute. It signals that professionalism remains indispensable to the rule of law. The crisis of incivility will not abate unless courts place these matters on the front burner. When judges act swiftly, the entire system benefits. Scott C. Clarkson is a judge of the United States Bankruptcy Court for the Central District of California.
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scientious judges are often unable to immediately address attorney mis- conduct and incivility when it arises. That reality is understandable. But it is also dangerous. The modern discovery process increasingly rewards aggression un- tethered from professionalism. Too many lawyers now operate under the assumption that there will be lit- tle or no immediate consequences for abusive behavior during meet- and-confers, depositions, electronic discovery disputes or motion prac- tice. Delay itself becomes part of the strategy. If sanctions motions take
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pleas from courts during bar associ- ation meetings and newsletters will suffice when the attorneys believe that judges are incapable or unwilling to act. Federal judges today preside over dockets of astonishing size and complexity. District and Bankrupt- cy Courts, particularly in California, confront crushing caseloads, chronic staffing shortages, expanding litiga- tion and discovery disputes that can consume hundreds of attorney hours before ever reaching a courtroom. In that environment, even the most con-
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