Sep 26, 2017
Jeffrey Toobin's article on Justice Stephen Breyer in the October 31, 2005, issue of The New Yorker begins with an interesting story. In the weeks following the Court's Bush v. Gore decision, Justice Breyer felt the need to keep his clerks from being discouraged about ending up on the losing side of one of the most critical decisions in recent history. Some were bitter or cynical. Others questioned the integrity of the Court. Breyer chose other roads. "I told them, 'This, too, will pass.'" Then, in what Toobin says is a reflection of the Justice's "fundamentally optimistic nature," Breyer states:
You have to assume good faith, even on the part of people with whom you disagree. If you don't assume good faith, it makes matters personal, and . . . in my experience, it normally isn't even true. People do act in good faith. The best clue to what a person thinks is what he says.
Litigators have to keep this in mind. For anyone who does trial work or litigation with any frequency, there will be losses, some heartbreaking. I've had cases into which I've sunk hundreds of hours of time and tens of thousands of dollars in costs only to come up at the end of the process with nothing. I've gotten rulings where I couldn't believe the Judge came to the conclusion he or she did. However, attributing hard-to-swallow decisions to anything other than good faith intentions and efforts on the part of a judge or jury is almost always corrosive.
Practicing law is challenging and at times discouraging. But it would not be worth doing if it was also a cynical or hopeless experience.
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