The 1989 movie The Fabulous Baker Boys staring Beau and Jeff Bridges is about two brothers who make their living playing the piano as a team act. After twenty years they have played only small clubs, minor venues and are small time mediocre. Frank, played by Beau is the brother who manages the act and has them play the same music in the same way with the same jokes and line of patter over and over. Jack (played by Jeff) goes along with this. The story revolves around their hiring a singer (Michelle Pfeiffer) and which eventually causes Jack to realize he is capable of doing much better things and the act breaks up.

While the main focus of the plot is not the fact that the two of them have been performing in the same way over and over for years resulting in mediocrity, it is that fact which struck me. I thought of the fact many trial lawyers do the same thing in how they try cases because change means personal risk of embarrassment or failure. Trying new things before a group is uncomfortable and we would rather just do it the way we always have done it. But, that results in a failure to grow, to improve and keep up with changing attitudes of new generations. My New Mexico friend, trial lawyer Carl Bettinger, has been attending improv classes for that very reason. The classes are intimidating and challenge him to adopt an assigned role spontaneously. But, they also build up courage to try new things in front of a group. We first met while I was teaching at the Spence Trial College in Wyoming where lawyers learn to use psycho drama in their trial work. One aspect of psycho drama involves re-creation and role reversal which is an essential tool for every trial lawyer to know how to use. This technique is one example of something which would be new to some trial lawyers and which many would find challenging. Yet, it would also help them grow and improve. New ways of selecting a jury with open ended conversations and sharing also are challenging to some lawyers. Yet, they result in a better relationship with the jurors. Telling the client’s story in argument by telling it in the first person from a different point of view may be an entirely new way of summing up to a jury for some. Yet, it can make the argument alive and interesting.

As trial lawyers, we tend to try our cases the way we always have. We use the same approach to jury selection, the same approach to opening statement and the same canned arguments. Stepping out of those familiar roles becomes more difficult the older we get and the more used we are to doing the same old way. At the same time new generations of people are serving on our jury who have a totally different mind set then previous generations. Marketing and behavioral scientists along with jury experts are discovering new ways of presenting information that is more powerful then the old way. If we don’t keep up and aren’t willing to experiment, we are not living up to our potential. We are like the Baker boys, doing it exactly as we always have in the same old way and becoming more and more mediocre. Let’s resolve to study new approaches with an open mind and have the courage to try them in representing our clients.