MLK Day Lessons from the Movie “Selma”

MLK Day Lessons from the Movie “Selma”

If you’ve read my morning routine you know that one piece of it is listening to sports talk radio to find out for the final time if Lebron James is better than Michael Jordan. Another perennial drive-time debate is whether Bill Belichik has won so many games with the New England Patriots because he has Tom Brady as his quarterback, or if Brady has won so much because he has Belichik.

Wherever you come down in this debate, you have to admit the Patriots have had an amazing run in the Brady-Belichik era. Thirteen AFC Championship appearances. Eight Super Bowl appearances. Five Super Bowl wins. So far.

This is infuriating for fans of other teams because the NFL is supposedly built for “parity.” In contrast to college football, it rewards winners by giving them worse draft picks. Perhaps this is why, sadly, the Patriots have replaced my Dallas Cowboys as the NFL’s most hated team.

Haters will claim it’s the cheating. But some part of the credit for the Patriots’ astounding run should go to the well-known philosophy posted in their practice facility: Do Your Job.

This is a great mantra because in three little words it conveys two distinct messages, one of exhortation, the other of relaxation. “Do Your Job” says first, take care of your responsibilities. Your teammates are counting on you. But second it tells you not to worry too much. You don’t have to do anything spectacular, just do your job. Trust that if your teammates do their jobs too, the team will succeed.

As I wait to watch the Patriots play on the day before Martin Luther King Day, this reminds me of a scene from the 2014 historical drama Selma, directed by Ava DuVernay and starring David Oyelowo as Martin Luther King, Jr.

Selma tells the story of Dr. King leading the protests that culminated in the famous march(es) across Edmund Pettus Bridge, and ultimately, the Voting Rights Act of 1965. If you haven’t seen the movie, I highly recommend checking it out on Netflix.[1]

The scene that sticks in my mind takes place about 18 minutes into the movie, in the modest kitchen of the King home in Atlanta. Mrs. King is folding laundry at the kitchen table. The phone rings.

Coretta: Hello? [We hear a man speaking in ominous tones over the receiver, she hangs up as Martin walks in.]

Martin: Same thing? [She looks at him knowingly then turns away.] 

Coretta: When are y’all heading out? 

Martin: We, uh, head back to Selma at 5 am. Turned out to be an ideal staging ground. There’s a . . . a full couple of weeks planned, quite a bit to be done.

Coretta: [drinks from a glass of water] I see.  [Martin takes the trash bag out of the kitchen trash can.] That highway is nice now, get you there in a couple of hours. Good people in those parts, though. [She hands him a new garbage bag.][2] 

Martin: Well, I’m worried about the ones who ain’t so good. [He puts a new bag in the trash can]. This local sheriff, Jim Clark,[3] is supposed to be bad business. Won’t go down without a fight, they say. And since we don’t fight . . . Well, good a place to die as any, I guess. 

Coretta: I wish you wouldn’t talk like that.

Martin: It just takes the edge off. 

Coretta: You and your friends can joke about that. I don’t joke about that.

Martin: You’re right. I’m sorry.

Coretta: I’ll uh, put these things away in your bag now, I didn’t realize you were leaving so early [she walks out carrying some folded clothes]. 

[Martin turns off kitchen light, hesitates.]

This is a great, economical scene. It conveys a lot of information without a lot of action or dialog. You know the Kings are receiving harassing phone calls. You sense tension in their marriage. You get the exposition about what’s happening with the sheriff in Selma. And, perhaps most important, you see that Dr. King is a real flesh and blood person who has to balance his family life with the very real possibility that his activism could get him killed.

But there’s one part of this scene that really resonated with me. Did you spot it? Remember, this is Martin Luther King, who we see in the opening scene preparing to accept the Nobel Peace Prize. Martin Luther King, the hero who led the Civil Rights movement. I mean, today the dude has his own national holiday. Yet in this scene we see him taking out the trash?

Why did the director or screenplay writer include this detail? The Kings could have simply stood in the kitchen, or sat at the kitchen table, talking.

Maybe it was just to give the actors something to do so the dialog would sound more natural. But I suspect there was more to it. When we see Dr. King emptying the trash can, it’s a reminder. Even a person who is doing great things still has to deal with the mundane necessities of daily life.

Of course, when the people doing the great things are rich, they pay other people to do the tedious things. The wealthy can’t be bothered with even the simplest of tasks, like folding their own umbrellas.

But still, even Very Important People have to do a lot of the same things ordinary people do. They put their pants on one leg at a time just like the rest of us. Or to vary a common saying, their trash stinks too.

And seeing Martin Luther King take out the trash was a small but important lesson for white-collar “professionals.” It was especially necessary for me because I work in the profession with the whitest of collars: the law. There is a tendency for us lawyers—especially lawyers in the more “elite” firms—to think we’re above everyone else. We have advanced degrees. We have licenses. We don’t take out the trash; we have people who come through the office after 5:30 to do that.

And when your hourly rate is $500 or higher, you start to think your time is more valuable than other people’s. Why should you spend an hour doing yardwork when you could be billing that time?

I’m not saying lawyers–or other busy professionals–shouldn’t pay someone else to mow the grass. I’m more concerned with the mindset. Do you get frustrated with the time you have to spend doing “ordinary” things when you’re trying to accomplish something important? I know I do. And all I’m trying to do is build a law practice. It’s not like I’m leading a movement to overcome 100 years of state-sponsored terror and voter suppression.

But maybe we shouldn’t look at household chores as a hindrance. Why should we expect to be trusted with great things when we can’t be trusted with the little things? Selma reminds us that taking care of minor tasks we don’t really want to do is perhaps the simplest form of morality.

So do your job. Take out the trash. Or whatever the equivalent responsibility is for you.

And trust that if you do your job, and other people do theirs, great things can happen.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Like most lawyers he’s still at the office when the housekeepers empty the trash.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] I recommend the movie with one significant caveat. As you may recall, there was some controversy over the film’s historical accuracy, particularly its portrayal of President Lyndon Johnson as a reluctant ally who King had to pressure into supporting the Voting Rights Act. Former Johnson aide Joe Califano blasted this portrayal as inaccurate. Director Ava DuVernay responded that she was telling a story, not making a documentary. This raises thorny questions: How much historical inaccuracy we should accept as artistic license? Do factual inaccuracies lessen the quality of a historical drama? Are minorities held to a double standard when they use artistic license? Interesting issues that I will save for another day.

[2] Apparently the clear plastic trash bag in the scene was an anachronism; such bags were not used in 1965. Also, you can see the blender on the counter is plugged into an outlet that has a green LED light. But let’s not quibble.

[3] Sheriff Clark was an ardent segregationist known for recruiting a horse-mounted posse of KKK members, wearing military style clothing, and carrying a cattle prod that he infamously used on black protestors. In his later life, Clark sold mobile homes, got accused of embezzlement, and even served time for conspiring to smuggle marijuana from Colombia. He was unrepentant to the end. In a 2006 interview, Clark said “I’d do the same thing today if I had to do it all over again.” See Jim Clark, Sheriff Who Enforced Segregation, Dies at 84.

Do Narcissists Make Better Lawyers?

Do Narcissists Make Better Lawyers?

In Book III of his Metamorphoses, the ancient Greek poet Ovid tells the story of Narcissus, the child of a naiad, Liriope, and the river-god Cephisus. Narcissus was “most beautiful” but had a “pride so fierce no boy, no girl, could touch him.”

One day a rejected youth prayed for Narcissus to get his comeuppance, and Nemesis, the Goddess of Vengeance, “judged the plea was righteous.” So she cursed Narcissus to fall in love with his own reflection in a pool. Narcissus endlessly stared at the pool, even pressing his lips to the water to kiss his own image. But “the vision is only shadow, only reflection, lacking any substance.”

Eventually, Narcissus figured out what was going on: “The truth at last. He is myself! I feel it, I know my image now. I burn with love of my own self; I start the fire I suffer.” But it was too late. “As the white frost is gone in morning sunshine, Narcissus, in the hidden fire of passion, wanes slowly . . . fading away.”[1]

This of course is the origin of the Klingon expression “revenge is a dish best served cold.” See Star Trek II: The Wrath of Khan (Paramount 1982). It’s also where we get the term narcissism, which Webster’s defines as “excessive interest in or admiration of oneself and one’s physical appearance.”

Narcissistic personality disorder

The Greek myth of Narcissus is also the origin of a modern medical term: Narcissistic personality disorder. As with any psychological condition, it is largely a matter of degree, and there is no single dispositive factor.

But while there is no single defining characteristic of narcissistic personality disorder, the Mayo Clinic publishes this list of symptoms. I’ve grouped them into four categories:

  1. What a narcissist thinks about himself
  • “Inflated sense of their own importance”
  • “Have an exaggerated sense of self-importance”
  • “Have a sense of entitlement”
  • “Believe they are superior and can only associate with equally special people”
  • “Fragile self-esteem that’s vulnerable to the slightest criticism”
  1. What a narcissist desires from others
  • “Require constant, excessive admiration”
  • “Expect to be recognized as superior even without achievements that warrant it”
  • “Expect special favors and unquestioning compliance with their expectations”
  • “Insist on having the best of everything – for instance, the best car or office”
  1. How a narcissist feels about others
  • “Lack of empathy for others”
  • “An inability or unwillingness to recognize the needs and feelings of others”
  • “Envious of others and believe others envy them”
  1. How a narcissist treats others
  • “Troubled relationships”
  • “Exaggerate achievements and talents”
  • “Monopolize conversations and belittle or look down on people they perceive as inferior”
  • “Expect special favors and unquestioning compliance with their expectations”
  • “Take advantage of others to get what they want”
  • “Behave in an arrogant or haughty manner, coming across as conceited, boastful and pretentious”

One more thing. Narcissists tend to be of a certain gender. But I won’t open that can of worms here.

I just want to distill the essence of narcissism and figure out if being a narcissist makes one a better lawyer. Because I’m a lawyer, and I like distilling essences.

I think the essential features of a narcissist are the same flaws the mythical Narcissus had: excessive self-love and excessive pride. In the workplace, these essential features of narcissism manifest as (1) an excessively high opinion of one’s abilities in relation to others and (2) excessive concern for getting credit from others.

Now that we’ve got a more precise working definition of narcissism, we can figure out if narcissists make better lawyers.

Are narcissists better lawyers?

The short answer is no. I don’t think narcissists make better lawyers.

But all else being equal, I’d bet that narcissists make more successful lawyers.

I posed a similar question in my post Are “Aggressive” Litigators More Effective? In both cases, the difficulty is disentangling the trait at issue from other traits that tend to coincide with it.

So first let’s separate narcissism from some positive traits it often accompanies: ambition, drive, boldness, to name a few. Those things can make you a more effective lawyer, but you can have them without being a narcissist.

So the question becomes: is a narcissist likely to be a better lawyer all else being equal? Assume two lawyers have the same experience, talents, and intelligence, but only one of them is a narcissist. Would you pick the narcissist to be your lawyer?

When we put it this way, I say no, for three reasons.

First, the narcissist’s inflated sense of self-importance is not helpful to the kind of work lawyers typically do. Despite what you see in movies and TV shows, good lawyering is not all bluster and bluffing. It takes discipline, organization, and diligence. The lawyer who thinks he’s hot shit—pardon my French—is less likely to be patient and methodical.

Second, narcissists just rub people the wrong way. A pompous or arrogant lawyer is usually a less persuasive lawyer.

Third, at the risk of mixing ancient Greek metaphors, lack of empathy is the narcissist’s Achilles’ heel. This is not to say that narcissists don’t get what makes people tick. I would bet the narcissist is better than most at understanding how to manipulate people. But the narcissist doesn’t really understand—or care—how other people feel. And that’s a big disadvantage. Excellent lawyers have a keen ability to put themselves in the other guy’s shoes.

But if I’m right, why does it seem like so many successful lawyers are narcissists?

Adam Grant may have some answers. He’s the top-rated professor at the Wharton School of Business and has written extensively on personality types in business leadership. In his article Tapping into the power of humble narcissism, Grant says “narcissists are more likely to rise up the ranks of the corporate elite and get elected to political office.” He chalks this up to the fact that people are drawn to the confidence that narcissists exude.

So should we strive to be more narcissistic to get ahead? Not necessarily. Grant touts a kinder, gentler version of narcissism: “Humble narcissists bring the best of both worlds: they have bold visions, but they’re also willing to acknowledge their weaknesses and learn from their mistakes.”

Makes sense to me. But to paraphrase another ancient text, what does it profit a man to be a narcissist, if he loses his own soul? On this question I think it’s useful to consult another ancient Greek, one who is less entertaining than Ovid, but perhaps more insightful.

Is narcissism a character virtue?

In his bestselling Nichomachean Ethics, Aristotle doesn’t address narcissism per se, but he does discuss vanity.

Vanity comes up in the course of Aristotle examining the major character virtues. Aristotle sees each virtue as a mean between two opposite vices. So, for example, with respect to how one responds to danger, the two extremes are cowardice and foolhardiness. Courage is the golden mean between them.

When it comes to claiming external rewards for oneself, vanity is the obvious vice:

Vain people . . . are foolish and do not know themselves; and they make this obvious. For they undertake commonly honored exploits, but are not worthy of them, and then they are found out. They adorn themselves with clothes and ostentatious style and that sort of thing; and since they both wish for good fortune and wish it to be evident, they talk about it, thinking it will bring them honor.

It’s easy to understand why vanity is a vice. But what’s the opposite of vanity? Aristotle uses a word usually translated as “pusillanimity,” which means timid or cowardly, but that’s really not the opposite of vanity, is it?

No, we don’t have a simple modern English word for the opposite of vanity. And that tells us something: we don’t think of the absence of vanity as a character flaw.

Aristotle, on the other hand, thought failing to claim the honor you deserve is a real character defect:

For the pusillanimous person is worthy of goods, but deprives himself of the goods he is worthy of, and would seem to have something bad in him because he does not think he is worthy of the goods. Indeed he would seem not to know himself; for if he did, he would aim at the things he is worthy of, since they are goods. For all that, such people seem hesitant rather than foolish.

But this belief of theirs actually seems to make them worse. For each sort of person seeks what [he thinks] he is worth; and these people hold back from fine actions and practices, and equally from external goods, because they think they are unworthy of them.

While we don’t tend to fault people for a lack of vanity, we can at least grasp Aristotle’s point. We see a version of this idea in contemporary self-help advice for professionals, especially women. See, for example, the bestseller Knowing Your Value: Women, Money, and Getting What You’re Worth by Mika Brzezinski.

So, while we don’t like vanity, we understand why hesitating to claim the “external goods” you are worthy of is a problem.

But don’t most people–men and women–have the opposite problem? You see this sentiment in the clichéd lament that Millennials are too “entitled.” And it’s not just Generation Y. It feels like it’s human nature to claim more than you deserve, not less. So you’d think vanity would be more common than pusillanimity, and worse.

But surprisingly, Aristotle says precisely the opposite. He claims that pusillanimity arises more often, and is worse.

To understand why, consider what lies between vanity and pusillanimity. Remember, Aristotle defines each character virtue as a mean between two vices. In this case, the Greek word for the mean between vanity and pusillanimity is megalopsychia.

This word is often translated as “magnanimity,” which Webster’s defines as generous or high-minded. A more literal translation is “greatness of soul” (megalo = great, psychia = soul). This better captures what Aristotle means, but “great-souled-ness” is kind of awkward, so I’ll stick with “magnanimity.”

“The magnanimous person,” Aristotle says, “seems to be the one who thinks himself worthy of great things and is really worthy of them.” So far, this sounds ok to our modern ears, though maybe a little elitist.

But then Aristotle goes a step further. The thing the magnanimous person is most concerned about claiming is honor, “the greatest of the external goods.” “Hence the magnanimous person has the right concern with honors and dishonors.”[2]

Now he’s gone too far. This “magnanimous” person sounds a little, dare I say, narcissistic.

Today the prevailing attitude about claiming  honor is more egalitarian. Yes, we want people who have traditionally been oppressed to claim more external rewards. Know your worth! But at the same time, we bristle at the notion of “great” people claiming great honors. Who do they think they are?

I have to admit my bias tends to run in this direction too. But that’s all the more reason to ponder Aristotle’s view that magnanimity is a virtue and pusillanimity a greater vice than vanity. If you’re hard-wired not to make a big a deal about your own accomplishments, maybe you’re not “living your best life.” You may need to compensate by watching how successful narcissists do it.

Learn how to claim credit. Just don’t stare too long at your own reflection.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. His fragile self-esteem is vulnerable to the slightest criticism.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] Translation by Rolfe Humphries (Indiana University Press 1983).

[2] Translation by Terence Irwin (Hackett 1985).

Are You a Teacher or a Storyteller?

Are You a Teacher or a Storyteller?

People have different communication styles

One thing I’ve learned after almost 20 years of marriage is that everybody has a different communication style. Let’s take the time my lovely wife was almost caught in the crossfire of a Houston highway gang shootout. I don’t remember the exact conversation, but it was probably something like this:

Me: Hi, honey, how was your day?

Her: Oh my goodness, it was crazy. You’ll never believe what happened.

Me: What happened?

Her: Well, you remember the kids had appointments at the orthodontist today, right?

Me: Right [I didn’t really remember]

Her: Their appointment was at 3:00, so we left around 2:00 and got on I-45, and then . . .

Time out. If you’re like me, you may already feel a little impatient. You just want to know what happened! You don’t want to be kept in suspense.

If this had happened to me, the conversation would be more like this:

Wife: How was your day today?

Me: It was good, but when I was driving to work I got stuck in a police chase. The guys the police were chasing pulled over and pointed their guns out their windows! I was right in the middle of it. It was scary, but luckily I was able to maneuver around the police cars and drive away unharmed.

See how I got right to the point and summarized what happened?

I used to wish my wife would do that too, so we could get to more important things, like watching Monday Night Football. But eventually I realized that’s just not her style. And now I actually enjoy the way she turns the day’s events into a story.

She’s a “storyteller.” I’m a “teacher.” She’s good at telling a story that keeps your attention. I’m good at explaining complicated facts or legal issues in a simplified way that teaches the audience the essential things they need to know. At least that’s what I wrote in my website profile.

But what’s the best style for the courtroom?

Trouble is, I’m a trial lawyer, not a teacher. Is my style right for the courtroom? It seems like most great trial lawyers are known as master storytellers. And good storytelling has tremendous psychological appeal. If you can frame the facts of your case as a compelling story of right and wrong, you may get the judge or jury on your side before the first witness even takes the stand.

Part of what makes storytelling effective is the suspense of not knowing what’s going to happen. I discovered a great example of this recently on YouTube. The video was G.E. Smith talking about playing in Bob Dylan’s band.

Those of you of a certain age will remember G.E. Smith. In the early 90s my college buddies and I religiously watched him fronting the Saturday Night Live band each week. (I mean, other than all the Saturday nights when we were dating extremely attractive coeds, of course.) We always got a kick out of seeing the different guitars G.E. would trot out. And if you’re really old, you may even remember him from those early Hall and Oates videos on MTV.

Anyway, in this video G.E. Smith tells the story of how he got to tour with Bob Dylan, one of his childhood idols. Before you read the rest of this, watch the video here.

Did you watch it? You saw that playing vintage guitars isn’t G.E.’s only talent. He also has a knack for storytelling. I think there are two key elements: he keeps you in suspense about what happened, and there’s a point at the end.

It wouldn’t be quite the same if G.E. had my style. If he just wanted to “teach the material,” he might say something like this:

I got the opportunity to tour with my idol Bob Dylan because at the New York studio audition, which I thought at the time was just an informal jam session, I knew one of his more obscure early songs called “Pretty Peggy-O.” Bob was impressed enough that he asked me to play guitar in his band. I toured with him for several years while I was still doing Saturday Night Live, and it was a great experience.

In my defense, this version gets right to the point and doesn’t waste words. But it’s also kind of dry. So do I need to change my style to be more engaging in the courtroom?

I think it depends. The opening statement in a jury trial is an obvious opportunity to tell a story. But there are many courtroom situations where storytelling is not a good idea.

For example, an oral argument in an appellate court is not the right venue for telling a story. Sure, you want to present key facts in a way that supports your legal argument, but you don’t want to rehash underlying facts or details of the trial. The judges have already read the briefs. They want you to focus like a laser on the difficult issues they have to decide.

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Stories. Good for kids. Not always good for courtrooms.

Even in the trial court, storytelling isn’t always the best strategy. Let me give you an example based loosely on cases I’ve handled.

Let’s say I’m defending against a motion for a temporary injunction to enforce a non-compete. The plaintiff’s lawyer starts off the hearing by telling the story of what happened: Mr. Employee came to work for the company, the company gave him leads, confidential customer information, and training, Mr. Employee decided to leave, and then he jumped ship to a competitor, hoping his clients would follow.

That’s a pretty typical approach. Of course, the plaintiff’s lawyer is going to tell the story in a way that emphasizes the factual grounds for granting an injunction.

When it’s my turn to talk to the judge, one approach would be to tell the same story, but from my client’s perspective. “Your Honor, about nine years ago, my client went to work for ABC Company and started building his client base from nothing, using only his laptop and hard work . . .” You get the idea.

But I don’t do that. Instead I go right to my strongest points:

Your Honor, you’re not going to hear any evidence today that a single client has moved its business from ABC Company to my client’s new employer. So there is no imminent harm whatsoever, and any harm that might occur could be adequately compensated with damages.

This can be an instant momentum changer. If I’m lucky, the judge immediately picks up on my argument and says to the other lawyer, “wait a minute, is it true that at this point your client hasn’t lost any customers?” And so the balance shifts.

You see, the longer I’ve practiced in trial courts, the more I’ve learned the value of leading with your best stuff and getting right to the point.

But I still like my wife’s stories.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

 

Are “Aggressive” Litigators More Effective?

Are “Aggressive” Litigators More Effective?

Lawyers, especially litigators, apparently have anger issues. Read a dozen profiles of litigators on law firm websites, and you’re sure to see many describe themselves as “aggressive.”

Just once it would be refreshing for a litigator’s profile to say something like “Hailey’s clients appreciate her passive approach to litigation.”

But no, lawyers apparently believe that clients want litigators who are aggressive (whatever that means). I’ve always wondered about this, but it’s been on my mind more than usual because I recently got a good result for a client by taking a passive approach.

This raises an important question: are “aggressive” litigators actually better for clients? Do they get better results? After accumulating 20+ years of anecdotal evidence, I think I have some answers.

But first we must define what it means for a lawyer to be “aggressive.”

Aggressive lawyer personalities

It could just mean an aggressive personality. You know the type because you’ve seen it in TV shows and movies. Pounds the table. Raises his voice. Won’t back down from any confrontation. “We’ll see you in court!”

This type has become even more prominent because it’s the kind of lawyer favored by a certain very famous client. Lawyers Michael Cohen and Marc Kasowitz are two obvious examples.

Here’s Cohen talking to a journalist who was about to publish a story unfavorable to his client: “Tread very f***ing lightly because what I’m going to do to you is going to be f***ing disgusting. Do you understand me? Don’t think you can hide behind your pen because it’s not going to happen. I’m more than happy to discuss it with your attorney . . . because, mother***er, you’re going to need it.”

Kasowitz is also a tough talker. When a stranger sent him a critical email, Kasowitz responded with these choice words: “I’m on you now. You are f***ing with me now. Let’s see who you are. Watch your back, b**ch. . . . You are such a piece of s**t. Call me. Don’t be afraid, you piece of s**t. Stand up. If you don’t call, you’re just afraid.”

I’d say those two are pretty “aggressive” (at least by phone and email).

But when lawyers market themselves as “aggressive,” they’re not just saying “I know how to act like a jerk.” They’re also talking about tactics, especially when their targets are more genteel and “sophisticated” clients, like big companies that have their own in-house lawyers. These clients want—or think they want—a lawyer who will take an aggressive approach to a lawsuit.

Of course, an aggressive personality does not necessarily mean an aggressive approach. There are plenty of litigators who have aggressive personalities but demure when it comes to taking action.

For example, remember all those F-bombs Michael Cohen dropped to pressure a journalist not to publish a story? The story was published. There was no lawsuit. And when Kasowitz fired off a confrontational letter to the New York Times threatening a defamation lawsuit, I waited eagerly to see what the lawsuit would say. I’m still waiting.

No, an aggressive personality doesn’t necessarily mean aggressive tactics. And the converse is also true. A lawyer can have the personality of Mr. Rogers and pursue aggressive tactics, smiling politely the whole time.

I imagine the notoriously button-downed Bob Mueller is one of these types: a mild-mannered gentleman who will gut you like a fish in court. (Just ask Paul Manafort if he misses his Persian rugs sitting in a jail cell.)

On the other hand, there does seem to be some connection between an aggressive personality and an aggressive approach. For starters, people with more aggressive personalities are probably more likely to pick litigation as a practice area. And I would be willing to bet that all else being equal, a litigator with a more aggressive personality is a little more likely to favor aggressive tactics.

But here again, it depends on how we define aggressive. I say an “aggressive” approach to litigation essentially means two things: having courage and being proactive.

The aggressive approach to litigation

Courage in litigation translates to a willingness to assert “creative” factual or legal theories and a willingness to fight out disputes in court, even if there’s a decent chance you’re going to lose.

But does it really take courage to do these things? The lawyer is trying to make money, and if anything, taking these risks means more billable hours.

True, but if there’s one thing that motivates lawyers more than money, it’s fear. Specifically, it’s the fear of losing, fear of getting embarrassed in the courtroom, even the plain-old fear of looking like you don’t know what you’re doing. These fears are what will stop litigators from taking a stand for their clients.

The second part of an aggressive approach is being proactive. This is the opposite of being reactive. You won’t find the adjective “reactive” in any lawyer profiles, but the reactive approach to litigation is common. A reactive litigator just reacts to events in the lawsuit, particularly deadlines and actions taken by opposing counsel.

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Litigation requires courage

Unfortunately, you often see lawyers who combine a reactive approach with an aggressive personality. They lurch from one crisis to another. They may go weeks without devoting any attention to the case, and then when a deadline is a few days away, they suddenly go on the warpath.

Many litigators get by and make a good living with this approach, especially if they master the art of appearing “aggressive,” managing client expectations, and taking credit when good results happen.

But this “aggressive-reactive” combination is not optimal for getting good results.

Fewer litigators are genuinely proactive, because being proactive requires discipline, and discipline is well, you know, boring. Being proactive requires a plan, a methodology. “I love it when a plan comes together.” Otherwise you’re just bouncing from one crisis to another. “Putting out fires” is not being proactive.

In short, I define an aggressive approach to litigation as being courageous and proactive. But we still haven’t answered the question: is an aggressive litigator better for the client?

Pros and cons of the “aggressive” litigator

Here we must be careful to correct for our biases. Lawyers with aggressive personalities are likely to believe that having an aggressive personality makes a lawyer more effective, and vice-versa.

What type am I? A guy with a highly aggressive personality is not going to sit down and write an article over-analyzing the concept of aggressiveness, so you already know the answer. Don’t get me wrong, I like to duke it out in court. But that’s because I like competing and, honestly, “performing” for a crowd, not because I like personal confrontation.

So, I want to adjust for my own bias and give aggressive personalities their due. I’ll acknowledge three main advantages to an aggressive personality in litigation.

First is the simple fact that aggressive people often get their way—especially with little things—simply because dealing with them is a pain in the ass. If you know opposing counsel is a jerk, you’re more likely to say “ok, fine, we’ll do the deposition at your office.”

Second is the fact that appearance can be reality in litigation. The vast majority of cases settle, and settlement expectations can be shaped by personalities. A lawyer with a genuinely aggressive personality is probably better at putting on a show that conveys the appearance that “we’re not afraid to fight this out in court.”

Third, there is some connection between anger and courage. Maybe anger is the wrong word. I’m thinking of what the Greeks called thumos, which might be translated as “spiritedness.” It’s the feeling that takes over when someone has physically threatened your loved ones or, in this case, financially threatened your client. Generally, a more spirited lawyer will be more willing to take a risk to defend a client.

Yes, in some ways an aggressive personality can make a litigator more effective, but overall, I think the benefits are minor. And there are drawbacks.

The biggest problem with lawyers who have “aggressive” personalities is that they’re not in control of their emotions. They let pride and anger cloud their judgment, and that causes mistakes. An angry lawyer can do OK if he’s just blocking and tackling. But do you want your quarterback to be angry? Or do you want a Joe Montana with ice in his veins?

On the whole, I think it’s a wash. An aggressive personality will be a benefit in some litigation situations and a hindrance in others. If anything, it’s a slight negative. In any case, I tend to favor lawyers just being themselves. If there’s one personality trait that will make you unpersuasive in litigation, it’s being a fake.

But what about aggressive litigation tactics? Regardless of personality, will a lawyer who takes an aggressive approach to litigation get better results?

If we stick with my definition of aggressive as being courageous and proactive, then I think the answer is a tentative yes. (How’s that for a non-aggressive answer?)

Litigation is not a tennis match (no offense to tennis). It’s more like tackle football. A lawyer who isn’t willing to get his nose bloodied is less likely to get good results. You need the courage to take the risk of losing. And proactive lawyers who push a lawsuit forward are usually going to get better results than those who just react to what others do.

Being aggressive in the right way at the right time

But what about the recent experience I mentioned? Does my successful experiment with  a “passive” approach call into question the aggressive approach to litigation?

athletes-audience-competition-171568
Litigation is not tennis

To some extent, yes. Here was the situation. My client was a business that got dragged into a lawsuit with multiple defendants. The plaintiff’s damage theory against my client was fundamentally flawed. We pointed that out early in the case, and the plaintiff indicated he might just voluntarily dismiss my client from the case.

So I waited. The last thing I wanted to do was bill my client a lot of money for taking discovery that could end up being unnecessary.

But you have to understand. This was hard for me. I wanted to do something.

Weeks went by with no activity. I couldn’t stand it. I suggested asking for the plaintiff’s deposition to try to prompt some action. But my client wanted to sit tight and wait. So I waited some more.

A couple weeks later the plaintiff dismissed my client from the case. It was over. Naturally, I took credit for our wise strategy of doing nothing.

But seriously, in hindsight my client made the right call. If I had been aggressive, it would have cost the client more money, and who knows, it might have irritated the plaintiff to the point of keeping my client in the lawsuit just to be difficult.

That got me thinking. Truth is, an effective litigator is aggressive about the right things, for the right reason, at the right time.

That reminded me of something I read in college. This is precisely what Aristotle said about the virtue of bravery.

You know Aristotle. He’s the guy who said: “We are what we repeatedly do. Excellence, then, is not an act, but a habit.”[1] This is the most popular philosophical quote in pop culture outside of Nietzche’s “that which does not kill me makes me stronger.”

But I digress. Aristotle had a lot to say about bravery in his Nichomachean Ethics, including this: “Whoever stands firm against the right things and fears the right things, for the right end, in the right way, at the right time, and is correspondingly confident, is the brave person; for the brave person’s actions and feelings reflect what something is worth and what reason [prescribes].”

This is a strikingly sober definition of a brave person. One might even object that this takes all the zing out of bravery. Imagine Mel Gibson in Braveheart exhorting his men to “stand firm for the right end, in the right way!” It doesn’t exactly get the blood boiling.

But Aristotle understood this. He did not want to reduce bravery to just another form of knowledge, as he said Socrates did. Instead he tried to strike a balance. He wanted to distinguish the virtue of bravery from raw emotion, but without denying the physical and emotional nature of bravery.

“Brave people act because of what is fine,” Aristotle said, “and their emotion cooperates with them.” In contrast, people who “fight because of their feelings, not because of what is fine or as reason [prescribes]” have “something similar” to bravery. This bravery caused by emotion is “the most natural sort,” but it is not true bravery until “decision and the goal have been added to it.”

In other words, the right kind of brave person doesn’t seek out danger just for the thrill of it, but when achieving the right goal requires bravery, the brave person’s emotions cooperate.

I think that’s a pretty good definition of the kind of “aggressive” litigator a client should want. If I have to take an aggressive position or take a risk in court to defend a client’s interests, I want my emotions to cooperate. But I want reason, not emotion, to drive the decision and the goal.

Because losing in court may not kill me, but it doesn’t make my client stronger.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He uses *** for bad words because hey, this is a family blog.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] This quote is actually misattributed to Aristotle, as explained here, but it’s close enough to the point Aristotle was making.

 

 

The Problem With the “Elevator Speech”

The Problem With the “Elevator Speech”

TexasBarToday_TopTen_Badge_VectorGraphicFlashback to when I had a solo law practice: A recruiter calls me looking for candidates to join a large law firm. I wasn’t really looking to make a move, but I asked about the position because I was curious. “How much portable business are they looking for?” I asked. “At least a million,” she said (meaning dollars per year).

It took some restraint not to bust out laughing. Or to respond with a sarcastic, “a million, is that all?”

And in all seriousness, I wanted to ask, “if I had a million dollars in portable business, why would I need to join another firm?” or “if I had that much business, would I select a firm based on some random cold call from a recruiter?”

But I’m too nice for any of that, so I just said thanks, not interested.[1]

Then I got to thinking, maybe I would have more business if I had a better elevator speech, or honestly, any elevator speech at all.

The Elevator Speech

An elevator speech is a short pre-set summary of what you do that you can share with new contacts you meet. The idea is to briefly promote your professional services in the time it takes for a typical elevator ride (around 30 seconds).

But some business development coaches will tell you it’s not enough to just describe your job. Ideally, you would identify the potential client’s need, explain how you address that need, and convey the value you would add to their business.

So instead of saying “I’m a lawyer, I do business litigation,” I’m supposed to say something like, “I help businesses resolve disputes efficiently and effectively.”

Rather than adding, “a lot of my practice is non-compete and trade secret litigation,” I would say: “Do you worry about your employees running off to competitors with your trade secrets? Well, I help companies like yours protect their goodwill and confidential information.”

You see advice like this a lot. And it strikes me as wrong, for at least three reasons.

Abstract expressionism: good for French art, bad for an elevator speech

First, I’m not big on abstract descriptions of what you do that leave people guessing.

Have you noticed that companies today have a hard time telling people exactly what they do?

When someone contacts me about a dispute or lawsuit, I’ll Google the names of the companies involved and look at their websites. It’s amazing how often the homepage won’t tell me in simple, concrete terms what the business actually does. When I click on “About Us,” it will say something vague like “we provide our clients with cutting-edge solutions for their data management needs” or “we help your business grow and connect with customers.”

Ok, I think, so you’re a software company? Or you do management consulting?

They must teach this in marketing school. But why can’t companies just come right out and say what they do? “We’re a construction company. We build things at refineries and other industrial sites.” There, that wasn’t so hard.

I think the simple and direct approach is better for the elevator speech too. Don’t make the person you’re talking to work too hard to figure out what it is you do. That’s annoying.

But even when your elevator speech is clear and concrete, it’s still a speech. That leads me to the second problem with the elevator speech.

Rehearsal: good for bands, not so good for networking

The second problem with the elevator speech is that it sounds like a speech.

When you meet someone for the first time, do you want to hear a rehearsed presentation about what kind of work they do? Of course not. You want to know some basic things about them and have a conversation (unless you are a misanthrope, in which case you don’t want to talk to them at all).

That’s because effective networking is not about presenting, it’s about connecting.

Wow, that sounded like something from a cheesy motivational speaker. But it’s true. You want to connect with people in a genuine way, because that leads to real relationships. You don’t want to sound like you’re just giving a practiced sales pitch.

Which leads me to the third problem with the elevator speech.

Good pitching: effective for the world-champion Houston Astros, not so much for relationships

The third problem with your elevator speech is that it’s all about you. If you spend your time giving someone a sales pitch, I predict in the future they are more likely to avoid you than to seek you out.

Think about it. If you’re a lawyer, you probably get contacted by various vendors who provide services to lawyers. Do you love hearing their sales pitches?

When legal vendors want to connect with me, I try to accommodate them. I figure they’re people just like me, trying to make a living, and I might need their services sometime. So I will hear them out when I can. But if all they do is ask me to send them my business, it’s not very effective.

For one thing, I usually don’t have a project right that second that I need their help on. But if I actually get to know the person, that’s probably who I will think of later when I have a real need.

For example, I’ve got a friend who works with an e-discovery company. I don’t think he has ever asked me for business, but when my firm needed help managing thousands of documents in a big litigation matter, I thought of him first.

Surely, people who may need a lawyer–or any kind of professional–are no different.

An analogy fraught with peril

Let’s analogize to dating. You’re single and you meet someone you find attractive. Are you going to give that person a little rehearsed speech? Like, “you should know, the ladies [or gentlemen] find me very attractive, I’m smart, highly successful in my career, and people say I have a great sense of humor.”

That’s like what Donald Trump said to Stormy Daniels (allegedly), prompting her to say “does this usually work for you?”

I’m no dating expert (I’ve been happily married almost 20 years now), but I’m pretty sure that telling someone how great you are is not the optimal strategy.

Similarly, business development experts like Karen Kaplowitz will tell you “pitching” is not always the best approach (see her guest blog post here).

So instead of saying, “I’m a lawyer, I handle cases that . . . blah, blah, blah,” how about saying “I’m a lawyer, I do business litigation, what do you do?” And then listen. And then ask more questions.

You might even want to do some reading about “active listening.” See, for example, What Great Listeners Actually Do. I don’t think there is any better way to get to know a person than really listening.

On the other hand, I don’t have a million dollars in portable business, so what do I know?

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IMG_4571

Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

After writing this post he realized it has way too many rhetorical questions, but hey, what are you gonna do?

[1] I’m not good, I’m just nice. See Stephen Sondheim, Into the Woods; Allan Bloom, The Closing of the American Mind, Part One, “Relationships.”

All the Legal News You Need

All the Legal News You Need

Wish you had more time to read the latest in the legal press? I have the solution. Read these five stories now, and they will cover 90% of the legal industry news that will come out the rest of the year.

What can I say, except “you’re welcome.”

1. Lateral Partner Moves

BigLaw Partner Frank Whitebread Leaves Smith, Jones & Davis to Join Jones & Smith

WorldLaw 100 firm Jones & Smith announced this week that Frank Whitebread is joining the firm as a shareholder. Whitebread, a well-known transactional lawyer who does M&A deals in the energy industry, was formerly the head of the Corporate section at the AmLaw 500 firm Smith, Jones & Davis.

Whitebread expressed enthusiasm for the new opportunity. “This move to Jones & Smith will give my team the platform to provide even better service to our multinational corporate clients everywhere they do business.” He noted that Jones & Smith has offices in 35 cities throughout the world. “Plus,” he said, “I’m going to make a shitload of money.”

Whitebread got the idea for the move after meeting Bruce Whiteshoe, the head of Jones & Smith’s local office, at their sons’ lacrosse game. That led to spending a week with their families together at Whiteshoe’s ski lodge in Vail, where Whitebread says he was impressed by Jones & Smith’s commitment to pro bono causes and diversity.

Two junior partners and three associates who work with Whitebread will make the move with him. One of those associates, Elizabeth Hailey, expressed excitement about the change. “Jones & Smith is known for matching Cravath’s associate bonus scale,” she said, “and their new quality of life initiative reduces their billables requirement to 2300 hours.”

Fred Rogers, managing partner at Whitebread’s current firm, Smith, Jones & Davis, says the parting will be amicable. “Honestly, I don’t know why Frank was hanging around here so long,” he said. “This place sucks.”

2. Law Firm Mergers

Jones & Smith Announces Merger with Smith, Jones & Davis

The international law firm Jones & Smith announced this week that it will merge with Smith, Jones & Davis, currently the third largest Texas-based firm.

The new firm will be known as Jones Smith | Smith Jones. Attempts to brand the new global juggernaut as “Smith Jones Squared” failed when the Business Development director couldn’t get Microsoft Word to make that “squared” symbol that looks like a little 2.

Jones & Smith’s worldwide managing partner Nigel Kennsington-St. James praised the deal. “Joining forces with our American friends at Smith, Jones will create a synergy that will serve our international clients well,” he said. “I mean, I’m talking a lot of synergy, it’s going to be really synergistic, you’ve never seen so much synergy.”

Some of the partners at Smith, Jones & Davis will not be making the move. Jim Bob Bowie, head of the firm’s venerable Insurance Defense section, said the higher rates and overhead at the London-based Jones & Smith did not make sense for his group. Instead, he said they will spin off to form a small firm that will office “behind that dental practice by the IHOP near my house.”

The merger comes just six months after rainmaker Frank Whitebread jumped ship at Smith, Jones & Davis to move to Jones & Smith. Asked for his comment on the new mega-firm, Whitebread said “I’m looking forward to rejoining some old colleagues, like . . . oh, who was that balding guy on 47 who does estate planning . . . well actually, never mind.”

3. Appellate Rulings

Court of Appeals Reverses Questionable Jury Verdict Against Big Company

Today the Court of Appeals of a big city ruled in favor of a large corporation, reversing a small-town jury’s verdict awarding many millions of dollars in damages to the blue-collar family of a man who was killed in a really horrible industrial accident. The court based its ruling on a technical legal issue.

In a 2-1 decision, two justices from one political party voted to reverse the judgment, while the dissenting justice from the other political party voted to affirm it. The majority’s painstaking opinion cited at least eleven prior court cases, sometimes even citing to specific page numbers.

The dissent was scathing. “Today the majority picks one of two reasonable interpretations of the case law to reach the result the majority considers fair,” the dissenting justice wrote. “I dissent,” he concluded, pointedly leaving out “respectfully.”

The corporation’s lead lawyer was pleased with the decision. “We’re very pleased with the decision,” she said.

The plaintiff’s lawyer was not so happy. “We worked hard to get the jury to ignore the lack of evidence of causation, and to focus on sympathy for the victims,” he said. “We’re not giving up now.” He vowed to make campaign contributions to the Tea Party-backed candidates challenging the two majority justices in their upcoming primaries.

A professor at a local law school who followed the case said the result was not unexpected. “This continues a trend of the Court of Appeals reversing judgments that it finds are not supported by the evidence,” she said. “I expect we will see more cases like this,” she added. “More and more big companies are hiring expensive lawyers to try to overturn judgments that order them to pay large amounts of money.”

4. End of the Billable Hour

Speaker Touts Alternative Billing Arrangements at Legal Conference

While traditional lawyers took family vacations or worked quietly at their offices during Spring Break, the legal industry’s boldest and brightest flocked to Austin for the 7th annual Legal Disrupterz Conference, held in conjunction with SXSW. And RazorWire’s correspondent was there to witness the sparks flying.

Keynote speaker Dallas Houston kicked off the conference at the W Hotel with his provocative presentation “Shattering the Billable Hour Paradigm.” He advocated alternative billing arrangements such as “value-based billing.” And for the fourth year in a row, Houston predicted that billing by the hour would be obsolete by the time of next year’s conference.

RazorWire caught up with Houston as he got into his Tesla in the hip 2nd Street District. “I’m so turnt to be here again during South By,” he said. “Did you notice I called it South By, not South By Southwest?” he added. “That’s how you can tell I’ve been here a lot.”

Still, Houston said, his dad told him Austin just hasn’t been the same since the Armadillo closed.

Organizers said they were pleased to have the conference sponsored by e-™. That’s not a typo. The name of the company is “e-”.

VP of Business Development Austin Travis explained that “e- delivers cutting-edge deliverables for its stakeholders in the digital space.” Asked to explain what that means, Travis said “we host cloud-based solutions for law firms looking for best practices.” “So you’re an e-discovery vendor?” the reporter pressed. “Ok, yeah, we’re an e-discovery vendor,” Travis replied sheepishly.

He added that e- still bills by the hour.

5. Bar Association Charitable Events

Local Bar Association Raises Money for the Poor at Exclusive Country Club

Heard that joke about the greedy lawyer? Well raising money for a good cause is no joke for the Springfield Bar Association. Last month, the SBA’s Community Affairs, Youth, Mental Health, Elderly Support, and Antitrust Litigation Committee (CAYMHESALC) held its annual “Bakin’ and Eggs” breakfast and baked goods silent auction to raise money for a great cause: the Springfield Heights Association for Disadvantaged Youth.

The event was held at the prestigious Shady Oaks Country Club. Known for its progressive stance on social issues, the club sparked controversy when it opened its membership to women and minorities in 2009.

“We thought it was important to partner with a venue that shares our commitment to helping the disadvantaged,” committee co-chair Buffy Van Pelt said. “Also, they make the strongest mimosas you’ve ever had, so that’s a plus.”

At the breakfast, Van Pelt and the committee’s nine other co-chairs received the President’s Chalice for excellence in bar leadership. They welcomed County commissioner Rick Gordon as the featured speaker. “We had to do some negotiating with Commissioner Gordon’s office,” Van Pelt said, “but once we agreed that his name and photo would appear on the front and back cover of the program, he was behind us 100%.”

And the best part: it was all for a good cause. Sponsors chose from three different levels: Baconator ($100), Ham Hock ($500), and Whole Hog ($1,000). With so many local firms sponsoring tables, Van Pelt said the event brought in over $65,000. “After paying for valet parking, the rental fee, and $37 per plate for breakfast,” she added, “we netted $478, and 100% of that goes to charity!”

Keeping with tradition, the committee invited three disadvantaged youth from J. Danforth Quayle Middle School to attend the breakfast. “This place is sick,” 8th grader Bobby Garza said approvingly. “I mean, I can’t afford to play golf, and the guard wouldn’t let my mom through the gate in her beat-up Corolla, but once I got in, it was cool.” His favorite part? “Those mimosas!”

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IMG_4571 Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

Any opinions expressed are his own, not the opinions of his firm or clients. This is a work of fiction. Any resemblance to any actual person, living or dead, is purely coincidental.

 

Courtroom Lessons from the Marshall Movie

Courtroom Lessons from the Marshall Movie

Imagine this. It’s 1941, and the NAACP dispatches a young Thurgood Marshall to a picturesque Connecticut town to defend a black chauffer accused of repeatedly raping a prominent white socialite, binding and gagging her with strips of her own dress, and throwing her off a bridge into a lake.

The headlines are going crazy. A local white man writes a letter to the editor saying, “we should have hung all n*****s while we had the chance, and trust me it would make the world better.” Imagine what it was like trying to pick a jury in that environment.

Except that statement was not printed in a newspaper in 1941. It’s actually what a white high school student said to an African-American girl on Snapchat in 2017, in the affluent mostly-white suburb where I live and saw the movie Marshall with my wife this past weekend.

So, yeah, you could say the movie is still relevant 76 years later.

But don’t go see Marshall like it’s homework or some rite of atonement. What makes it a great movie is that it’s a classic Hollywood courtroom drama, spiced up with some odd-couple buddy-cop flavor. The fact that it also serves as a sort of origin story for the most successful civil rights lawyer of the 20th century is icing on the cake.

On the Five Minute Law Movie Scale, I give it 0.4 hours (that’s on a scale of 0.1 to 0.5 hours).

Granted, I’m a trial lawyer who loves stories from the civil rights movement, so they had me at the preview. Chadwick Boseman could have made any half-way-decent movie about the sensational Joseph Spell trial, and I would have been hooked.

But Marshall was even better than I expected, and one reason is that the courtroom scenes were relatively realistic (by Hollywood standards). In fact, I took away from it some practical lessons on how to be a better trial lawyer. Here are nine of them.

*SPOILER ALERT: These tips contain minor plot spoilers. But if you’re like my mom, who figures out every plot twist in the first 15 minutes of a movie, then I’m not really giving much away.

1. Clients don’t always tell you the whole story

I’m sure Thurgood Marshall  believed all defendants have a right to counsel, but a key part of the NAACP’s legal defense strategy was to focus on defendants they believed were actually innocent. This was important to the overall political strategy and to fundraising.

So, one of the first things Marshall (Boseman) does is interrogate his new client, Joseph Spell (Sterling K. Brown), to assure himself that the man is actually innocent. But would you believe that Spell doesn’t tell Marshall the whole story in that first interview?

More about that later.

2. Don’t rely too much on stereotypes for jury selection

On paper, she’s a terrible juror for the defense: a white woman who grew up in North Carolina and now rubs elbows with Connecticut high society. Local defense counsel Sam Friedman (Josh Gad) is ready to strike her, but Marshall says not so fast. She’s an educated woman with a mind of her own, her body language towards the “Yankee” prosecutor showed some hostility, and she likes you, Marshall tells Friedman. Plus, Marshall has a hunch this lady may know things about the victim, Eleanor Strubing (Kate Hudson).

The result: the white socialite gets on the jury. She even becomes the forewoman.

When you have no other information about a juror, you may have to fall back on demographic profiles, but jury consultants say that attitudes about case-specific issues are a better guide than stereotypes. And of course, it never hurts if a potential juror likes you.

3. Some things are better left unsaid

Mrs. Strubing strangely claims that after her chauffer threw her over a bridge into the water, he threw rocks at her. So, when Friedman cross-examines the local police captain who inspected the scene, he asks whether any rocks were found on the bridge. The captain can’t recall.

Friedman then dumps a pile of pebbles on the prosecutor’s table. Would you call these pebbles or rocks, Captain? The witness eventually admits they are pebbles, prompting chuckles from the jury.

The unsaid part: the fact that Marshall collected the pebbles at the scene. The defense never offers any witness to lay a predicate that the pebbles came from the bridge.

But they didn’t have to. In the words of Hall & Oates, Some Things Are Better Left Unsaid.

4. Save that killer impeachment point for closing argument

The examining physician testifies that skin was found under the victim’s fingernails, but there’s a problem: there’s nothing in his examination notes about that. When Friedman brings up this point on cross, the doctor is ready with an excuse. My wife took the notes, he says, and she neglected to include that fact. And then the doctor drops a bombshell. It was a black man’s skin under her fingernails.

On the next break, Marshall berates Friedman for falling into a trap.

Imagine if Friedman, instead of bringing up the point during cross examination, had waited until closing argument to point out to the jury that the doctor’s notes said nothing about skin under the victim’s fingernails. Then it would be too late for the doctor to try to explain away the glaring omission.

5. You can do it if they don’t object

In law school, I had a trial advocacy instructor (now a judge) who told a great story about defending a police officer accused of assault. He started slapping himself on the head with the alleged weapon in front of the jury, causing himself no injury. The students couldn’t believe that was allowed. The instructor’s point: it was allowed because no one objected.

The defense team in Marshall does a similar demonstration. Mrs. Strubing claims she never screamed, even when a police officer was only a few feet away, because she was gagged. In front of the jury, Marshall puts the gag in Friedman’s mouth and pulls it tight, asking Mrs. Strubing if he has it right. Friedman then belts out the loudest, longest scream you can imagine. Point made.

Can they do that? Well, no one objected.

6. Bring up your client’s baggage before the other side does

Mr. Spell is not the ideal defendant: he abandoned a wife and two kids in Louisiana, got dishonorably discharged from the Army, and got fired from his last job for stealing. So here’s what you’re going to do, Marshall says to Friedman, you bring up all those bad facts when you get Spell on the stand. Don’t give the prosecution the chance to do it first.

Friedman does exactly that, getting Spell to admit every check in his checkered history  before the prosecutor can ask a single question.

As I wrote here, if you know there are bad emails from your client, don’t try to hide or ignore them. Usually you’ll only make it worse. What was true in 1940 is true now: you look better if you freely admit your bad facts.

7. Be careful with open-ended questions on cross examination

When prosecutor Loren Willis (Dan Stevens) gets his crack at Spell on cross examination, he unloads on Spell’s history of lying. Then, after setting up Spell as a habitual liar, he goes for the jugular with his key question: if you’re innocent, then why did you lie to the police about what really happened?

But the question backfires. Marshall has prepared Spell to knock this one out of the park, and Spell does it. The prosecutor is so shaken, he does the only thing he can think to do and asks the judge to strike the answer. After a long pause, the judge gives his ruling.

Conventional wisdom says you only ask leading questions on cross. That advice is not always realistic; sometimes you just have to ask an open-ended question. But the prosecutor’s blunder in Marshall is a good reminder of why using open-ended questions on cross is dangerous.

8. Persuasion requires meeting the audience half way

When Spell answers the prosecutor’s key question, you sense that the tide is turning. But the defense still has to persuade the jury in closing argument. Over dinner, Marshall tells Friedman what to say in closing.

Throughout the movie, we’ve seen Marshall going on the offensive, so we’re bracing for an all-out assault on Mrs. Strubing’s credibility. But Marshall understands that Friedman is not going to persuade the all-white jury by portraying the white victim as a bad person. Instead, he crafts the argument to get the jury to feel sorry for her (with obvious echoes of To Kill a Mockingbird).

Sometimes persuasion requires accepting the biases of your audience and crafting an argument that appeals to their world view, not yours.

9. Get a non-lawyer’s opinion about the big picture

Boseman portrays Marshall as a supremely self-confident young lawyer who already knows what he’s doing (prompting friend Langston Hughes to quip, “I’d say you have enough confidence for all of us”).

But it’s a non-lawyer who helps Marshall discern the key to the case. Early on, the wife of the local NAACP leader asks Marshall if he really thinks Spell is innocent. “Why would a woman lie about something like that?” she asks.

It is only when Marshall reflects on that question that he realizes his client hasn’t told him the whole story. That’s when he really figures out how to defend the case effectively.

When I get a new case, I like to describe the big picture to my wife, daughter, or another family member. Hearing a non-lawyer’s take is a great way to gauge how a jury is likely to react. That’s just as true today as in 1941.

Some things haven’t changed.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.