The Scoreboard Does Not Care About Your Reasons

Most lawyers have a ready answer for every difficult result. The facts were against them. The judge was unreceptive. The client made it impossible. The other side had resources and resolve that no one could have predicted. The explanations are usually true, and that is the problem.

This is the second article in Wessel’s rules of practice series. The rule it examines is one every serious professional believes he already applies, but most do not. In a lengthy matter that ended in a result almost no one who knew the facts expected, the cost of that failure became visible in a way it rarely does.

The Scoreboard Does Not Care About Your Reasons

Bad performance with a good excuse is not good performance

The most dangerous excuse in professional life is the one that happens to be true. It is available, it is accurate, and it does nothing to move the result.

Rugby is a collision sport built on territory, discipline and work that spectators often do not see. In South Africa it is something closer to a religion than a game. The British and Irish Lions, selected from the best players across England, Scotland, Wales and Ireland, represent the most demanding test that rugby produces, and their 1938 tour of South Africa was the last before the Second World War brought international rugby to a halt.

Boy Louw played loosehead-prop for South Africa in that series. That position anchors the front row of the scrum, the position from which every set piece begins, and the best of them are hard, precise men who understand that the game is often decided in places the spectators cannot easily see. When a journalist asked Louw what he made of the Lions’ tactical approach, his response, delivered in Afrikaans-accented English with a trademark additional ’s’ on the verb, became part of our rugby vocabulary and has not left it: “We only ‘looks’ at the scoreboard.” The grammar was imperfect. The standard was not.

That standard applies in the boardroom and the courtroom as clearly as it applies on the field. The scoreboard does not record your reasons; it records the score.

Here is my second rule of practice, and I have never found a better way to state it: bad performance with a good excuse is not good performance.

That rule is not a demand that lawyers always win, or a concession that winning does not matter, because it does. Hard matters involve judgement calls made under real pressure, where the right answer is rarely visible in advance and the wrong one becomes clear only after it has been acted on. The rule is something more specific and considerably harder to sustain: the discipline to read the result honestly once the matter is over, and to ask whether the explanation, however true, is doing something it is not entitled to do, which is to convert a bad performance into an acceptable one.

In almost every profession, the most effective form of self-protection is an explanation that cannot be faulted. It is true, it is reasonable and anyone who heard it would nod. And it does precisely what the rule prohibits: it closes the question before the harder version of it has been asked. An explanation that is true is not the same as an explanation that is sufficient. That distinction is where the rule lives, and the professional who has never been forced to feel it has almost certainly never honestly read a bad scoreboard.

What did decades of winning actually cost?

The matter I draw on across this series is in the public domain as a published judgment, and I was present in it from the first instruction through to the conclusion on appeal. The executive at its centre I will call Peter. He was a divisional chief executive who had built a significant operation and understood exactly what he held: decisive, exact, accustomed to control. The case ran for 176 hearing days and produced a record of more than 35,000 pages. At that scale, errors do not remain hidden. They compound, they harden, and eventually they become visible in the result.

The group chairman, a second-generation owner of the business and a powerful man, walked into Peter’s office and suggested, with the comfortable authority of someone who had already decided, that Peter step aside for his son-in-law. The next day, the chairman announced that Peter was going to play more golf and that his son-in-law would take over as divisional CEO. A day later, when the trustee confirmed that Peter would forfeit his share options if he resigned, everything changed. Peter was eventually dismissed. My principal took on his case.

The statement of claim was 95 pages without annexures, one and a half spaced, everything in dispute. Peter was a pedantic engineer, a description I use with genuine affection, because his precision made him a compelling client and a very difficult one simultaneously.

I overheard my principal on the telephone to the opposing attorney early in the matter. “Justin,” he said, “you need to decide what you want in this case. Do you want Pulp Fiction or Sense and Sensibility? I can give you either.” Justin, it turned out, did not blink. That exchange, heard once and not forgotten, captures the culture of the matter precisely. The offer was genuine; the confidence was earned. The problem was that Justin had his own reasons for seeing the matter through, and once that became clear, the case had already committed itself to a position it could not easily leave.

My principal was one of the most senior employment lawyers in the country, and decades of thoroughness had served him and his clients extremely well. The comprehensive approach, contesting everything, leaving nothing unaddressed, was his method. In Peter’s matter, it was exactly wrong. The habits that carry a career to distinction can become the ceiling through which a particular matter cannot rise, and when the method fails, the first instinct is to doubt the matter, not the approach.

The matter had everything that makes senior employment litigation genuinely difficult: a client with a real grievance, a capable lawyer, and a strategy that was, viewed from the outside, defensible. The problem was the unexamined assumption that the approach which had always worked was the approach that would work here. That is not the kind of assumption that gets tested when the work has always been vindicated by the result.

How does a strong case become a bad result?

Peter was constitutionally incapable of letting a point go unchallenged. Lawyer and client were a perfect match in temperament and a catastrophe in practice. The decision, taken early and never revisited, was to put everything in dispute. Every point fought. Every document contested. Every issue, however peripheral, given the same weight as the issues that would actually decide the matter.

That decision had a logic. A 95-page statement of claim, everything in dispute, was not only a pleading. It was a signal: a demonstration of scale and seriousness designed to induce retreat. The assumption was that the other side would not have the stomach for a long and expensive fight. When retreat did not come and the assumption was exposed as wrong, the case was already committed to a front deliberately made too wide to narrow without abandoning positions that had been publicly taken.

What followed is where the deeper failure of advocacy lives. A single judge is not a jury. He is a professional reader with a crowded roll and a judgment to write that must be defensible on its face. He does not arrive at a 35,000-page record with the same investment that produced it; he arrives as a stranger, and he needs to be given a clear, human, articulable reason to find in your favour. Volume does not give him that. It gives him work.

The discipline that advocacy actually requires is not the discipline of exhaustive preparation, though preparation matters. It is the discipline of selection: the ability to look at a record and ask not what is true, but what will move the person who must decide. Thoroughness substituted for judgement, and by the time that substitution became visible, the record had already made it impossible to reverse.

Peter’s case had everything a single judge needs to feel the gravity of what occurred. A powerful chairman telling a senior executive to make way for his son-in-law. Share options forfeited the moment a trustee gave an honest answer. Play more golf. Those facts, held up clearly and in sequence, carry the moral weight of the whole matter. The strategy did not hold them up. It buried them in thirty-five thousand pages and invited the judge to audit what Peter disputed rather than feel what Peter experienced.

When did the record become the problem?

The sharpest irony in the matter was that Peter’s determination to contest every point, dispute every document and yield nothing eventually helped prove the very thing the other side needed to prove. Over 176 hearing days, the record began to speak in a voice Peter did not intend. A divisional CEO whose judgement under pressure produced that record was a divisional CEO whose fitness for the role could be questioned.

That is the danger in a case that loses its discipline. It does not merely become expensive or slow. It begins to produce its own evidence. In fighting so hard to expose the chairman’s conduct, Peter helped create a record that made the chairman’s conclusion about him easier to defend. The unfairness of what happened in that office was not vindicated by the litigation. It was obscured by it.

Peter lost. His dismissal was held to be fair, on what most observers would have regarded as a strong underlying case. The judgment was not long. That was telling.

The excuses were available, and they were true. A difficult client who could not yield a point. An opponent with the resolve to fight through years of hearing days. A matter that built its own momentum until a single judge was left with a record that had grown far beyond the story it was supposed to tell.

But the rule does not ask whether the explanation is true. It asks whether the explanation changes the performance. It does not.

The decision to put everything in dispute was a performance decision. The failure to revisit it when the assumption behind it had failed was a performance failure. So was the failure, across years of trial, to ask whether the record being built was still serving the case or slowly defeating it.

The scoreboard showed what it showed. The reasons did not move it.

What does the rule actually demand?

The rule does not demand that lawyers always win. It does not turn every difficult outcome into a failure, or treat every wrong call as professional fault. Real litigation involves risk; decisions are made under pressure, with incomplete information, against opponents who are also thinking and moving. A lawyer who only runs matters he is certain to win is not a litigator. He is a clerk with opinions.

What the rule demands is harder and more precise. It demands that, when the result is bad, the professional separates the explanation from the performance. Not because the explanation is irrelevant. Often it matters. But because it cannot be allowed to end the inquiry.  A true explanation may tell you why the result happened. It does not tell you whether the work was good enough.

That is the distinction most professionals avoid. The question after a bad result is not whether the decision was understandable. Many poor decisions are understandable. The question is whether, stripped of the comfort of explanation, the work met the standard the matter required.

In Peter’s case, the answer is uncomfortable. The problem was not that the case was unwinnable. It was that a case with a powerful human story was made too wide, too detailed and too difficult to decide in Peter’s favour. The strategy assumed retreat. When retreat did not come, the strategy should have changed. It did not.

That is what the rule demands in practice: not regret, not self-punishment, not a general commitment to learn lessons, but the discipline to identify the decision that mattered and ask whether it still made sense when the matter began to change.

It also demands that every serious matter carry a route to resolution from the beginning. A strategy with no exit is not a strategy - it is commitment to a position. Once Peter’s case had grown beyond any manageable scale, there was no version of resolution that felt acceptable to either side. That was not courage. It was drift with a litigation budget.

Success rarely teaches this discipline. Winning allows a method to survive unexamined. Losing, if read honestly, does something more useful. It shows the professional where the method failed, where the assumption hardened, where the explanation arrived too quickly.

The difference between experience and repetition is often found there. One lawyer practises for thirty years. Another practises the same year thirty times. The distinction is not visible in the wins. It is visible in whether the losses were ever properly read.

Peter’s judgment, when it came, was short. 35,000 pages had produced it, and not one of them changed what it said. The excuses were available, and the excuses were true.

The scoreboard is truer.

Written by:

Wessel Badenhorst

May 2026