GREAT TRIAL LAWYERS ARE CONTINUAL STUDENTS

When we follow the careers of great trial lawyers we see different attitudes about learning new ideas. There are those who have a viewpoint “if it ain’t broken don’t fix it” when it comes to new ideas or research about being a trial lawyer. This attitude applies to  lawyers who have been very successful just doing what they have always done and just keep doing the same. They are often afraid to leave their comfort zone and are reluctant to risk anything new so they just do the same thing. It works for some, but raises the issue of how much more they might accomplish if they applied new, valid ideas to their work.

My choice was to be a continual student but  involving information from research in sales, marketing and communication rather than legal publications. However, I’ve been careful to incorporate good ideas into my already existing trial approach instead of suddenly adopting what is promoted as the new “end all solution” for success.  In addition, I’ve measured these concepts against proven research in other related fields. In reviewing “new” ideas and concepts applying to trial work, I’ve discovered there few totally new ideas and most are already existing concepts but applied or presented in a new or improved manner.

What I believe is that we must be continual students and  learners with an open mind not assuming we already know something. We should not have the attitude of  a child in grade school  with his hand up shouting to the teacher “I know. I know”  because we should be open to full understanding even if we think we already know. I always believed in the attitude at the Academy at Athens where first year students were called “the wise men.” The second year students were called “those who love wisdom” and the third year were called simply “the learners.” I believe we need the attitude of the label for the third year and not first year students as trial lawyers.

As to being a student of  the law, one viewpoint, held by many great trial lawyers,  is that it is important to learn everything there is know about every technical subject involved in their cases to the point they become experts. These are the lawyers who are particularly bright and have the need to know the subject matter as well or better than the experts involved. They want to be fully prepared to deal with any direction the subject matter might go in discovery and trial. They want to know as much or more about every aspect of the technical issues in the case.  The problem with this approach is that too often these are the people who are just compelled to be intellectually led into every dispute or technical issue during the trial. They need to prove they know as much or more than anyone else on the issue. That leads them into disputes about endless technical issues  just to prove how much they  know and to prove they are right. But, that results in witness examinations and arguments that are very boring, involve insignificant issues to the jury and divert into a trial of confusion which always favors defense. Knowing too much about the subject and a compulsion to prove you are right in a dispute with an expert is disastrous in trial. Who is more boring than a “know it all”?

The other is the approach I learned to follow when I first began trying cases  to rural juries in my home county and surrounding small counties. That approach was  to search for the big picture of the issues in the case that were likely to resonate with the jurors own values and experiences. In involved never losing sight of the overall picture irrespective of the diversions that are created by the defense. That involves not worrying about the details of technical issues, the dispute of complex issues or the many diversions raised, but to instead stay focused on the big picture. Not knowing too much helps in  this regard. I also believed in focusing primarily on the collateral attack of an expert and not the technical issues. If you undermine credibility of a witness and exper their conclusions are as important. It involves trying cases with broad generalizations and slogans intellectually driven lawyers find distasteful. It means repeating the theme and attacking the betrayal of defendant over intellectual disputes of technicality. It is appealing to the minds of ordinary  jurors and not to some personal intellectual standard of technical accuracy. It’s impression over intellectual logic.

So long as you would  rather be right than win, you are going to have problems as a trial lawyer, at least in my view.

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