On the flight here to Los Cabos I finished Malcom Gladwell’s new book Outliers. I believe his previous two books The Tipping Point and Blinkhave invaluable information for trial lawyers. I’m not sure this one does or at least not to the same degree as his previous books. His new book does discuss what I’ve told lawyers. He calls it the "Matthew Effect" and I call it the law of abundance. The point is that Matthew 25:29 quotes Jesus as saying:
"For unto everyone that has shall be given, and he shall have abundance, but from him that has not shall be taken away even that which he has."
I’ve argued that if trial lawyers keep learning and improving their trial skills, they will be given an abundance of skills and if they don’t, they won’t stay static, they will deteriorate in their trial skills. This part of the book discusses the relationship between practice and hard work to success.
I was interested in his description of the New York law firm of Wachtell,Lipton, Rosen & Katz. He says it does not bill by the hour. It simply names a fee. He writes that when Kmart was defending against a hostile takeover, the firm quoted a flat fee of $20 million.
He writes about a trial in the South in which the defendant was charged with murder when he went home and got a shot gun, killing some loafers at the general store who had been tormenting him for several months. The jury acquitted because, as one of the jurors put it "He wouldn’t have been much of a man if hadn’t shot those fellows." A real life illustration of the principle that impression and not logic determine the verdicts in trials.
I also read with interest his description of KIPP Academy where kids from poor neighborhoods are taught mathematics and other basic courses with a high percentage graduating from college. They are taught a protocol called SSLANT. It stands for: smile, sit up, listen, ask questions, nod when being spoken to and track with your eyes. I thought of jury selection where SSLANT would be a very good rule for trial lawyers who do a generally bad job by interrupting, not listening and looking like they are angry.
Lastly, he spoke about old line Wall Street law firms and their attitude that a lawyer’s job was to settle disputes in a conference room, not the court room. The old line firms didn’t litigate, they assigned that to the unsavory trial lawyers in other law firms. Certainly, that was the attitude when I started out. —–