FEAR IS YOUR GREATEST LIMITATION
Fear is the primary impediment to lawyers becoming“ more than the facts,” or more than simply competent technicians. This results in inexperienced layers being driven more negatively than positively. Rather than giving their best pitch with gusto, their primary motivation is to not“ screw it up.” To say it is the fear of failure is a bit trite.
Begin by trying to taste your own fear. What is its essence? By incrementally peeling away the emotional varnish, you will probably find that it is really a fear of embarrassing yourself. In other words, what you are really afraid of is being vulnerable. Now we are getting close to the core of fear.
The irony is that the problem is also the answer. With reflection, you will come to understand that your fear is also a gift; a gift from you, to yourself. All you have to do is be honest enough to unwrap your own present; i. e., be honest with yourself.
This kind of honesty requires you go to the very place you don’ t want to go. You must embrace your own fear. By being really honest with yourself you will then have the ability to be really honest with others, meaning the jurors.
Why is this kind of honesty so difficult to access? Because it requires a vulnerability that is the precise opposite of not only how we want to know ourselves, but more important, how we want others to view us. We want others to see us as competent, strong and confident; yet down deep, we rarely think of ourselves that way.
“ STACK-A-FACT”
Most of us are scared when we go to court. We feel weak and impotent. Every fiber of our being is at risk. What do we, as lawyers, do when threatened at such a primitive level? What everyone else does. We marshal all our resources to protect us from the threat. We defend ourselves. As smart lawyers, we try to think our way out of the problems. We analyze, categorize, and fractionalize everything over and over, and over again. I call this kind of behavior“ stack-a-fact.”
No surprises here. After all,“ stack-a-fact” is an integral part of every lawyer’ s training. Much of the work young associates do, and must do well, requires behavior and skills that are in direct opposition to the principles of persuasion. For example, when responding to motions for summary judgment, a lawyer’ s job is to identify fact questions that must be resolved by the jury.“ Any question will do, just find me a fact question. Defeat that damn motion!” shouts the boss. More theories and more facts surely increase the chance that the judge will agree there is a fact question somewhere. This behavior is the opposite of simplification.
There is a selection mechanism that excludes anyone from being a lawyer who is not adept at the skills tested on the LSAT. Your ability to perform multi-factorial analysis will reward you with a fine test score, but what does that have to do with your compassion, creativity, or common sense?
My trial lawyer friends from the big firms tell me that the best students from the best schools do not necessarily make the best
82 x The Trial Lawyer jury trial lawyers. Why? Because they’ re not comfortable making quick decisions on their feet. They always need to be in control and tend to overanalyze everything. After all, their analytical prowess serves them well, both as students and lawyers. While much can be anticipated and briefed pretrial, something always harkens unbidden. Do I object? If I ask this question, will it“ open the door” to evidence that wouldn’ t otherwise be admissible? My friend from Salem, Ralph Spooner, reminds us that“ Trials are live action, baby!”
THE THREE INTANGIBLES
Now let’ s talk about the three attributes of persuasion and the stuff of great trial lawyers: hard work, creativity and passion.
1. Hard work
This is what we do best. We generate lots and lots of billable hours. There is no need to belabor this. You already know too much. Two thousand-plus billable hours a year. I rest my case.
2. Creativity
This is in short supply among lawyers for many reasons. First, we intellectually worship logic, and emotionally we want structure and order in everything. Some of what we do in our own work is generating legal syllogisms, which has everything to do with classic deductive thinking, and nothing to do with inductive thinking. We need and demand lots of 90-degree angles. The big news here is that jurors think inductively, not deductively. This is important.
Bill Wheatley’ s Thoughts Here, I include some comments from my longtime friend, Eugene lawyer Bill Wheatley. He practices in the areas of defense of personal injury and commercial claims. I quote from a recent letter he wrote me:
I’ ve been wanting to talk to you or drop you a line concerning our last conversation. You put forth the proposition that the three keys to effective trial advocacy are:
• Passion
• Hard work
• Creativity
Persuasive as you are, I thoughtlessly accepted the proposition and agreed with you. However, it has been haunting me ever since.
I believe you’ ve got it right with hard work and passion, but I’ m a bit concerned about your message of‘ creativity.’ In my experience, more cases are lost because someone is trying to be creative( when it really isn’ t necessary) than cases lost because of a need for creativity. Obviously, there are those rare cases and where talents like yours can capture the soul of a case with a creative approach. In most cases, however, the concept exceeds the