In psychology there is a principal known as the “Dunning – Kruger effect.” It refers to the psychological phenomenon which leads people to overestimate their ability because they have failed to grasp how much they really don’t know about the subject. They think they are well-informed and understand when in fact they don’t fully understand. People, lawyers in particular, too quickly believe, that as intelligent people, they have fully grasped a new concept which has been presented to them. Often, they have retained the big picture but have not taken the time to internalize the full and complete truth of the idea. They have a superficial understanding and therefore cannot correctly apply the idea while thinking they are doing so.
We live in a culture where social media and instant communication results in our demand for short, simple and brief information. We want instant satisfaction even when it involves the communication of new concepts. We don’t want to take the time and make the effort to fully understand, review and grasp all of the nuances of that idea. We are too quick to just want to know “how to do it” and then repeat
Furthermore, we give ourselves, as lawyers, credit for the intelligence to be able to duplicate anything another lawyer has done if only we knew the “secret formula” involved. Just tell me how to do it and I’ll achieve the same thing, is their attitude. We read books or go to seminars and listen to talks about trial skills and assume all we have to do is use the same words, technique or code and we will get the same result. The fact that we can describe or repeat the concept which we have learned about does not mean we have understood it to the point of internalizing it so that it has the full power it contains. The irony of this reality is that the more simple the concept involved the greater the difficulty intellectuals have appreciating or fully grasping its significance. Too often, we as trial lawyers, are intellectual snobs who tend to be disdainful of ideas which do not appear to be sophisticated or complicated. In fact, most great trial concepts are basically simple.
This observation is often illustrated when a plaintiff’s trial lawyer achieves an outstanding result or verdict. The most common response from other trial lawyers is to ask for a copy of their final argument or opening statement. They believe that the reason for the result is what was said or done by the lawyer. Therefore, what they want, is a copy of the same thing the lawyer did or said in order that they can repeat it in their trial and get the same result. The fallacy is that it is rarely the words used or any technique that is the primary cause of the successful result. More often it is the credibility and trustworthiness of the lawyer by his or her demeanor and conduct which resulted in the jury’s verdict.
It’s not a matter of a “magic formula of words or technique” at all. You can memorize and repeat everything the lawyer did or said, but yet have a disastrous result.
Of course, how we frame the issues is of extreme importance. Certainly, the way we argue the case has a significant impact in the outcome. The discussions we have during jury selection, the opening statement and the examination of witnesses all play a vital role in the outcome. However, merely because you know the words to a song sung by Taylor Swift doesn’t make you Taylor Swift. Imitating the late, great Pavarotti and knowing the lyrics to his opera arias does not make you an opera singer. What does make a significant difference in effectively applying a new idea is to study it fully enough to deeply grasp the reason it is effective and the sincere as well as genuine belief in its efficacious quality. The most powerful force we have is what we say to ourselves and believe.
The right approach to wanting to improve your trial skills is to carefully examine new ideas presented to us in books and seminars. Those that have personal appeal to our intellect or personality we need to consider carefully. That does not mean being an intellectual elitist who assumes they immediately understand why it “works” and how to apply it. Just repeating or memorizing the words won’t work. The first requirement of a great trial lawyer is someone who is open, unguarded and totally genuine. Pretending or acting will be quickly detected by the jury. If we are real and say things we genuinely believe we will bond with jurors.
Let’s change our mind set when we are presented by new ideas or learn of outstanding results of other lawyers. Instead of thinking we already know what is being presented to us, we should listen with concentration to see that there is a concept we could learn and adopt to our advantage. When we learn of a successful outcome, our first thought should not be that “if he or she could get that result then there must be a secret reason,” but rather, what is there to learn from what was done in that case that would benefit my clients and my trial skills. Let’s always be students who are learning how to represent our clients in the most skillful manner.