2 Strategies to Getting Better Hotel Sleep

2 Strategies to Getting Better Hotel Sleep

This week I’m excited to have a guest post from Craig Huggart. Craig liked my post I’ll Sleep When I’m Dead: The Ignored Epidemic in the Legal Profession and asked if he could contribute something on the topic of sleep. Here are his helpful tips about getting better sleep on the road. – Zach

Do you sometimes struggle to sleep well in hotels? Me too!

However, after more than 600 nights on the road, I found two key things that make it easier to get a good night’s rest on the road – picking the right room and optimizing it for sleep.

Pick The Right Room (or have your assistant do it for you)

Choose The Right Hotel

  • I pick the closest Hilton and ask them two key questions. One – is this a quiet hotel? Two – are there any events that will disturb the quiet during my stay. If I am satisfied with the answers, I choose this hotel. If not, I ask them to recommend a nearby hotel. I learned this lesson after staying adjacent to the Red Hat Amphitheater. On a Tuesday, from 5 – 10:30 PM, a rock concert was happening and even wearing my noise cancelling headphones, it was very loud.

Choose The Right Room

  • Two days before check-in, I call the hotel to have them help me choose a room. I tell them I spend about half of the time on the road. I’m not worried about a one bed or two-bedroom accommodation; my priority is sleep. Will they help me choose a quiet room and one that can be made as dark as possible. Then, when I check-in using the app, I just okay the room. This works great!

Optimize The Room For Sleep

Make It Cool (About 64 degrees is optimal for sleep)

  • Ask for a fan.
  • Have maintenance check to ensure the HVAC is working well.
  • Hack the thermostat – A dirty little secret is that many hotel thermostats have governors and motion detectors on them. I once woke up sweating in the middle of the night because the air was cut off due to a motion detector. If a maintenance person doesn’t disable these features for you, go to YouTube and search for something like “hack hotel thermostat and brand name,” and you will find a list of cheat codes to disable this.

Make It Dark (The goal is to have it pitch black)

  • Close the gap. Curtains almost always have a flap that opens in the middle. A couple of binder clips or pants hangers can fix this.
  • Block the lights – Cover the door’s peephole, the TV’s red light and other lights using duct or electrical tape. (I love this pocket duct tape). Use towels and pillows to block the light coming from under the door and window.
  • Use a sleep mask – This is a very personal choice, but my favorite is the Manta Sleep Mask.

Make It Quiet (Block out all you can)

  • Use a white noise machine. I use the Marpac Rohm Portable, but a friend of mine uses the SNOOZ.
  • Use earplugs. This can take some getting used to but is one of the things that has had the biggest impact on my sleep. I recommend Mack’s Pillow Soft Silicone Earplugs. They block out a bunch of sounds and don’t irritate my ears.

Let’s face it; you’re never going to sleep as well on the road as you will at home. However, these tips can make a huge difference.

I’d love to hear from you. What is your best tip for sleeping better in hotels?

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Craig Huggart has been a legal technology trainer since 2001. He is an Alabama fan, a Star Trek geek, and is passionate about making the lives of lawyers a little better. You can reach him at craighuggart@gmail.com.

What’s My Motivation?

What’s My Motivation?

Fall is here, football season is back, and for a minute my Dallas Cowboys were on a roll. They started the season 3-0, with Dak Prescott and Co. looking impressive. So, in Week 5 of the 2019 NFL season, I was confident they would handle the Saints, who were missing their injured future-first-ballot-Hall-of-Fame quarterback Drew Brees.

Final score: Saints 12, Cowboys 10.

But hey, maybe the Cowboys can use the loss as motivation. Failure can be a great motivator, as the folks at Dick’s Sporting Goods know. Back in 2012 they put out a great commercial titled Untouchable. It starts with images of four high school athletes who just lost the big game. An unseen speaker, presumably a coach, gives this speech:

It’s tough to come this far and lose.

It hurts.

But you are defined in life by the way you respond to defeat.

That pit in your stomach, fill it with fire.

Next season, starts right now.

Remember this hurt.

Think about it when you want to sleep in in the morning

Think about it when you want to shut it down, instead of doing an extra set.

Promise yourself, that you will never, ever feel like this again.

You promise yourself, that you will come back untouchable.

As these words are said, we see images of each kid’s off-season training regimen. The soccer player tapes the newspaper headline “Westfield Comes Up Short” to her bedroom mirror. The track kid runs by a swimming pool where his friends are hanging out. The football player builds his strength while working construction. The basketball player does dips in the restaurant kitchen where he’s working. Then we see the training scenes from the gym, court, and field.

The next season, they “come back untouchable,” and win.

It’s a great commercial. I used to watch it to get motivated for my next professional goal.

Lawyer or not, we all deal with career losses. Maybe the jury went against you. Maybe you got fired. Or maybe you just didn’t get that promotion you were hoping for. Whatever the setback, you can use that experience as fuel to fire your motivation.

You often hear this kind of message from professional athletes, when they talk about how the “haters” and doubters motivated them to work even harder to succeed.

But why do they need this kind of motivation? I mean, they’re professionals. Isn’t it just part of the job to put in the training you need to succeed? And you could say the same  for any profession.

It reminds me of a conversation I once had with a more senior lawyer. I asked for advice on how to deal with the inevitable situations where you don’t perform at your best. In other words, how do you deal with the fact that you can’t always “bring your A-game”? The response: you have to do a cost-benefit analysis looking at the cost of not giving your best versus the benefit of doing so.

That was great advice. For a robot.

For human beings, not so much.

The problem is that consistent excellence requires discipline, and discipline is hard. We’re just not wired to do things we don’t like for long periods of time with no apparent short-term benefit. We need some kind of emotional motivation. Intellectual motivation—merely reasoning “if I consistently stick to my weightlifting regimen this summer I will be a better tackler in the fall”—is not going to cut it.

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Unlike humans, robots require no motivation.

Waking up every day to the headline “Westfield Comes Up Short,” on the other hand, may get the fires burning.

So I used to watch that Dick’s Sporting Goods commercial and think, “yeah, I’m going to work even harder after this setback and come back UNTOUCHABLE! AAARGGH!”

Ok, I did not actually grunt. But I did like to think that way.

Then a funny thing happened. I noticed that concentrating on painful losses made me feel kind of, I don’t know, crappy (that’s a clinical term). Feeling angry, resentful, or frustrated did not seem to help me work harder or smarter. In fact, I noticed that a negative mental state tended to make my job performance worse.

I know, it sounds crazy. But bear with me. Because my theory recently received support from a highly regarded authority in industrial psychology: late-night talk show hosts.

You may have heard about a brouhaha between Bill Maher and James Corden. It started with Maher, ever the contrarian, saying that “fat-shaming” needs to make a comeback. You can watch his segment here.

There was a certain cruel logic to Maher’s argument: if we make it ok to make fun of fat kids again, maybe it will motivate them to lose weight.

Sound familiar? That pit in your stomach, overweight kid, fill it with fire. Slim down and come back untouchable!

But James Corden was not having it. Corden, no stranger to struggles with weight, offered a funny and incisive rebuttal you can view here.

Corden’s most insightful point was that bullying people about their weight is not actually effective:

Bill, I sincerely believe that what you think you’re offering here is tough love, and you’re just trying to help by not sugar-coating reality for fat people, even though you know how much fat people love sugar-coating things.

But the truth is you’re working against your own cause.

It’s proven that fat-shaming only does one thing.

It makes people feel ashamed.

And shame leads to depression, anxiety, and self-destructive behavior.

Self-destructive behavior like over-eating.

Sure, Maher had some valid points in his critique of American obesity, but Corden’s response rings true. Feeling bad about yourself is not an effective weight-loss strategy. And we should not expect that dwelling on past defeats would be any more effective as a career development strategy.

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Does “fat-shaming” motivate people to lose weight?

Yet the professional athlete paradigm still has a certain gravitational pull. There’s a reason the Dick’s Sporting Goods commercial is effective. We love the stories of professional athletes grinding away in the off-season to prove the haters wrong.

That brings me back to the New Orleans Saints. When their star quarterback Drew Brees went down, the next man up was a guy named Teddy Bridgewater. Serious NFL fans remember he was a first-round draft pick by the Minnesota Vikings. But things did not go as planned. He tore his ACL in practice, missing most of the 2016 and 2017 seasons.

When Bridgewater finally made his return in the fourth quarter of a 2017 game against the Cincinnati Bengals, the crowd gave him a standing ovation. He then made two pass attempts and threw an interception. His experience reminds us that, train as we might, we never really become “untouchable.” We all remain vulnerable.

But Bridgewater did not give up. He eventually found himself a backup on the Saints roster. When Brees injured his thumb, Bridgewater stepped in and had his big comeback in week 2 of the 2019 season, leading the Saints to an emotional 33-27 victory over the Seattle Seahawks.

You can see where this is heading. Cue the interview footage of Bridgewater talking about how he was determined to prove all the doubters wrong while he slowly rehabbed that ACL injury, right?

But that’s not what Bridgewater said. I first saw his reaction in this tweet from jazz saxophonist and New Orleans native Branford Marsalis:

Branford Marsalis tweet

“Thinking about all the ones who believed in me.” Wow. Now that’s motivation.

I hope the Dallas Cowboys are thinking about that.

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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. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

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.

 

The Sunk-Cost-Fallacy Fallacy

The Sunk-Cost-Fallacy Fallacy

Donald Trump made news when he suggested it might be time to pull American troops out of Afghanistan. U.S. military forces have been there about 18 years. That’s an easy number for me to remember because my daughter is 18 years old. She was born in 2001. Then 9-11 happened, and I’m kind of glad she wasn’t old enough to remember it.

Going into Afghanistan seemed like a no-brainer at the time. The Taliban controlled Afghanistan and were harboring Al-Qaeda. It seemed the only people who opposed President George W. Bush’s decision to send U.S. troops into Afghanistan were the kind you can count on to oppose virtually any U.S. military action (far left with a sprinkle of libertarian types). In the wake of the worst attack on American soil in my lifetime, W’s approval rating was high even among Democrats.

Of course, that didn’t last. Opinions on the Iraq war were more divided, and today it seems there is a broad consensus that Iraq was a mistake. Not only that, people are even questioning whether it makes sense to stay in Afghanistan. Eighteen years later the Al-Qaeda threat looks significantly diminished, yet Afghanistan seems like an endless quagmire.

More traditional hawks tend to reject this Afghanistan revisionism. If we leave Afghanistan now, aren’t we admitting that going in to get Bin-Laden and Al-Qaeda was a mistake? After all the dollars spent and American lives lost, how can we just give up?

This, of course, is the Sunk Cost Fallacy. It’s primarily a principle of economics, but it applies in a wide range of scenarios. The idea is that in deciding whether to spend additional money or resources on a project that is in progress, a rational actor should consider whether the future benefits are likely to outweigh the future costs. It is a fallacy to consider costs incurred in the past—the “sunk” costs—because there is nothing you can do to change them.

In other words, it’s a fallacy to continue pursuing a venture that is not going to be profitable on the ground that you’ve already invested time and money in it.

Sound familiar, litigators? If you have any experience with litigation, you have probably experienced the sunk-costs fallacy firsthand. Let’s consider an example from my favorite hypothetical lawsuit, Paula Payne Windows v. Dawn Davis.

The Sunk Cost Fallacy in Litigation

Dawn Davis was the top sales person at Paula Payne Windows, but she became disgruntled when her business development budget was cut and she couldn’t do her annual trip to Vegas with her best customers. So she accepted a job offer from Paula Payne’s fierce competitor, Real Cheap Windows.

Then Paula Payne sued Dawn, claiming breach of contract and misappropriation of trade secrets. But the judge thought the non-compete was too broad and denied Paula Payne’s motion for a temporary injunction.

Six months later, Paula Payne had obtained no relief and spent over $50,000 on legal fees. Documents produced by Real Cheap showed that Dawn had brought several customers to Real Cheap, generating about $100,000 in revenue. Paula Payne’s CFO estimated that Paula Payne would have made about $20,000 in profit on those sales if the customers had stayed with Paula Payne.

“Paula, we’ve got to make a decision,” the company’s lawyer said to the founder and CEO. “Our trial date is only six months away,” he said, “and we need to hire a CPA as a damages expert.” And here’s the kicker: “I know a good one we can use, but he’ll need a deposit of $15,000.”

Paula grimaced. “Ok, and how much are your fees going to be from now through the trial?” she asked. “Hard to say,” her lawyer said, “but you’re looking at paying us at least another $50,000.” “So you may want to think about settling,” he said, “especially considering your damages may be less than $50,000.” He added that Real Cheap’s lawyer already indicated Real Cheap would be willing to do a walk-away settlement.

“No way,” Paula shot back. “What was the point of suing Dawn and Real Cheap and paying you $50,000 if I’m just going to quit now?”

And there it is. The Sunk Cost Fallacy. A rational business person would coldly look at the cost of going forward (around $65,000), the potential benefit (let’s assume a recovery of around $50,000), and the chance of success. Even assuming a better than even chance of success, it looks like the smart move for Paula Payne would be to settle for whatever she can get, or even to walk away.

The Sunk-Cost-Fallacy Fallacy

But of course real people—even sophisticated business people—don’t think like that. It doesn’t feel right to spend $50,000 on a project and then decide to shut it down. It’s easy to understand that emotion.

If want to put it in economic terms, you could say there is a psychological cost to giving up on a venture when you have already invested your time, money, and energy in it. The mental pain that Paula will feel if she quits is real, and in theory you could assign a dollar value to it. Isn’t that similar to what juries do when they consider “mental anguish” damages?

When you take that pain into account, then maybe the economic critique of the Sunk Cost Fallacy is itself a fallacy. The economic problem with the critique is that it doesn’t take all of the relevant costs into account.

Putting aside economics, there’s a more practical problem for Paula Payne’s lawyer. If he approaches the issue from purely an economic standpoint, he’s going to under-appreciate the importance of Paula’s emotions, and he won’t have a happy client. In other words, presenting the issue to Paula as purely dollars and cents doesn’t reflect high “emotional intelligence.”

It turns out there is a second principle at play: the Sunk-Cost-Fallacy Fallacy. It’s a fallacy to think that a client who has sunk costs should make decisions based purely on a rational assessment of the future economic costs and benefits. After all, Paula’s not a robot. In the words of Bob Schneider, she’s only blood and bones.

The First Law of Holes

Let’s assume that Paula Payne’s lawyer gets that. He has high emotional intelligence and is aware of the Sunk-Cost-Fallacy Fallacy. That means he will not be too quick to dismiss Paula’s objection that she has already spent $50,000 on the lawsuit. He will understand that for Paula, simply giving up is not an option, even if walking away makes economic sense. He will “feel her pain.”

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I’m fixing a hole, where the rain gets in

So, full speed ahead! Forget the fact that Paula Payne may have to spend over $65,000 on lawyer and expert fees to go to trial on a $40,000 lost profits claim. At least she’ll be able to look herself in the mirror and know she stood up for the rights of her company. Right?

Maybe. But here’s the problem. Chances are, the case is still going to settle. I’ve taken a non-compete case to trial before, but it’s rare. A trial of any kind of case is rare. Nine times out of ten (or more), it’s just a question of when the case settles, and for how much.

Let’s assume that six months in, Paula Payne Windows decides to keep moving forward. Then she spends another $30,000 on legal fees over the next three months. At that point, Real Cheap offers $20,000 to settle the case. Now Paula has an even more difficult decision. Settling is going to be even more painful because now she’s spent over $80,000.

This brings us to a third principle: the First Law of Holes. The First Law of Holes says when you find yourself in a hole, stop digging.

Yes, the pain of walking away after spending a lot of money is real. But that pain is only going to increase after you’ve spent even more money. In our hypothetical, Paula would have been better off—and probably felt better about the outcome—if she had stopped digging at the six-month mark.

So we’ve come full circle. In a sense, the First Law of Holes is just a version of the Sunk Cost Fallacy. But the First Law of Holes brings home the crucial point that sunk costs keep increasing. Better to cut your losses now than later.

That doesn’t necessarily mean the U.S. was wrong to go into Afghanistan, or that Paula Payne made a mistake when she decided to sue Dawn Davis and Real Cheap Windows. She understandably felt she had to do something to protect her company. And it is not to say that business people should never press forward with a lawsuit. Then I would be out of a job.

But whether we’re dealing with litigation, foreign policy, or day-to-day business decisions, we should be self-aware enough to recognize when the Sunk Cost Fallacy is tugging at our heart strings. Even if it’s just human nature, we should resist that pull. And sometimes the right decision will be to stop digging.

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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.

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).

The Problem With “The Most Successful People”

The Problem With “The Most Successful People”

There is a story about a lady at a dinner telling President Calvin Coolidge she had wagered she could get the President to say more than three words. Silent Cal’s famous response: “you lose.”[1]

More about Coolidge later.

Over the summer you may have noticed that social media was abuzz with “the most successful people I’ve met” posts. Apparently it started with this tweet from a guy calling himself Pomp:

Pomp.png

Naturally this led to people posting their own lists. These fell into two categories: (1) earnest attempts to make a better list and (2) parodies.

Some parodies were funnier than others, but with thousands of people weighing in, the funniest ones were pretty darn funny. Twitter at its best.

I didn’t have an immediate tweet of my own, but my thoughts on “successful people” eventually morphed into a blog post called Successful Blogger Shares Secrets of Morning Routine. It was classic me: half-joking, self-deprecating, not really that funny.

But now I want to share my serious, deeper thoughts about this “habits of successful people” thing. If you’re like me, you probably want to be “successful” (whatever that means), and you like good tips on how to succeed. So does the recent “successful people” episode have any lessons of real value?

Let’s start with the list that kicked off the tweetstorm. It’s easy to make fun of it, and I am not above doing that, but does it contain any true insight?

This is a tough one. The most profound truths are often the simplest and most obvious. That means there is often a fine line between the profound and the banal. Or in the words of David St. Hubbins, “it’s such a fine line between stupid and clever.”

So let’s start by giving Pomp his due. We can concede that it’s good to do the things on his list. We can even acknowledge that most successful people do most of those things.

Now, with that out of the way, let the snark begin.

Many people pointed out the fact that successful people often have a head start:

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Others highlighted the fact that “successful” people can be selfish jerks:

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And some redefined success to favor cats and fuzzy fictional children’s characters:

Eat honey or marmalade

But for me, the funniest ones were the absurd non sequiturs:

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Jokes aside, there are also serious critiques. For one thing, many traits people put on these lists are tautological, i.e. true by definition. Saying that successful people “build great teams” or “demand excellence” is only slightly more insightful than saying “successful people tend to be very successful.”

But there’s a more fundamental problem. This tweet pointed it out:

Survivorship Basis.png

Survivorship bias is the logical fallacy of looking at the characteristics of people who survived some selection process and ignoring the people who did not. It is a form of selection bias.

Selection bias provides a meta-critique of the whole idea of identifying traits of successful people. When we select successful people and leave out unsuccessful people, we fail to make a comparison that would be useful. Plus, when we decide which successful people to study, we effectively predetermine which characteristics make one successful.

A trivial (?) example that makes the point: highly successful entrepreneurs who wear the same thing every day. Steve Jobs and Mark Zuckerberg did it and built multi-billion dollar empires. But wearing your sleeveless Def Leppard shirt and cargo shorts every day probably won’t guarantee success. Just like wearing the same white shirt and blue suit won’t make your YouTube series on non-compete litigation a viral sensation. Hypothetically.

This gets to the correlation versus causation problem. Let’s take another example. Does working out every day cause you to succeed? Or perhaps highly successful people have some other characteristic that explains both why they make partner at age 29 and the fact that they never miss their 5 am spin class.

If you really wanted to be scientific about it, you would identify a certain habit—such as reading a book every week—and you would compare a randomly selected group with that habit to a randomly selected group without that habit. Ideally, each group would be exactly the same but for that one characteristic. You would then see if the book-reading group was more successful than the group that watches The Bachelor every week.

Of course, this is virtually impossible to do in real life, which is why social science will never be as “scientific” as laboratory science.

No, understanding the secrets to success requires wisdom, not double-blind clinical trials. The scientific method has its limits.

And while the average individual is not very wise, there is a certain collective wisdom that can emerge from a community. Case in point: the nuggets of wisdom that can be panned from all the “successful people” parodies in the Twitterverse.

Just to name a few:

  • Many factors go into success
  • Success is not entirely within your control
  • Many successful people were born into wealth or privilege
  • People succeed by being in the right place at the right time
  • Some people achieve success through immoral, unethical, or illegal means
  • Successful people can have negative or self-destructive traits in addition to their positive ones
  • Sometimes the negative traits of successful people are inextricably intertwined with the positive ones (Nietzsche said, “Be careful, lest in casting out your demon you exorcise the best thing in you”)
  • Imitating the traits of successful people doesn’t guarantee you will succeed
  • “Success” isn’t everything

Wait a minute. One of these nuggets is not like the other. The last point—success isn’t everything—calls into question the whole premise.

This leads us to the most profound truth to emerge from the “most successful people” memes. The most successful people define “success” on their own terms.

If you define success as becoming a billionaire, a professional athlete, or a rock star, then your chances of success are pretty low. But if “success” for you means loving your friends and family and treating people well, your chances increase.

This is undoubtedly true, but it kind of dodges the question. What if we change the question to “what practice will help you succeed in your business or career?” That’s less important than “what is a meaningful life?” but still important.

And that brings me back to Calvin Coolidge. Here’s something we know he really said:

Nothing in this world can take the place of persistence. Talent will not: nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not: the world is full of educated derelicts. Persistence and determination alone are omnipotent.

My dad shared this quote with me years ago, and aside from the political incorrectness (we wouldn’t say “men” and “derelicts” today), it’s pretty good advice.

It’s also a great example of what I call “dad” advice. I don’t necessarily mean advice from my dad, and dad advice could come from anyone (including a mom). Personally, I’m more prone to make a dad joke than to give dad advice, but I have two kids of my own now, and on occasion I find myself dispensing some dad advice.

Dad advice has two main characteristics: (1) it’s somewhat obvious, and (2) it’s not fun.

Obviously, if you want to build wealth then you should save more and spend less. Obviously, if you want to lose weight you should eat healthier foods and exercise. Obviously, you do not want to emphasize the fourth when playing over a major seven chord.

This is dad advice. It’s kind of a downer.

If it wasn’t obvious, it would come from an expert, like Tony Robbins, not your dad. If it was fun, everyone would do it.

Persistence is like that too. It’s boring. But here’s the good news: it works. Recently I had a small but significant achievement that resulted from a couple years of steady effort. It really brought home to me the importance of persistence.

So yeah, the most successful people I’ve met are persistent. And most of them don’t wear the same thing every day.

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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. “Nietzsche says, out of chaos comes order.”

These are his opinions, not the opinions of his firm or clients.

[1] The “you lose” story is probably apocryphal, but like most great stories, if it didn’t really happen it should have.

Successful Blogger Shares Secrets of Morning Routine

Successful Blogger Shares Secrets of Morning Routine

You’ve all read those “habits of successful people” and “best morning routine” articles. Is this just another one of those? Well, yes. But it’s a little different.

That’s because my morning routine doesn’t follow the conventional scripts. You already know the basic types.

First there’s the “Crunchy” kind: get a full night’s sleep, wake to the sound of birds chirping, practice “mindfulness” for 20 minutes, then do some yoga and meditation, drink green tea, and eat an egg-white omelette made with local asparagus and eggs from cage-free free-range chickens. Eventually get to the office at 11:00 am.

That’s not for me.

But I’m not big on the “Ironman” kind of morning routine either: wake to an alarm at 4:30 am, dunk yourself in ice-cold water for five minutes, run six miles wearing a weighted vest, then drink a cup of dark-roast coffee mixed with New Zealand goat butter. Then go to your job at the shoe department of J.C. Penney and kick ass.

No, I’ve got my own special morning routine.

The first thing you need to understand is that your morning routine actually starts the night before. If I want to have a super-productive day, I start by setting my iPhone alarm to go off an hour earlier than usual—for me that would be 5:00 a.m.

The alarm goes off at 5:00 am. I stagger over to the nightstand and hit the snooze button, which I think is set to nine minutes by default. There is probably some way to change that, but with my busy schedule I haven’t had a chance to research it. Anyway, over the next hour I hit the snooze button another six or seven times.

You might ask why I don’t just set the alarm for 6:00 am and get up without hitting snooze. What you don’t realize is that I’m not actually sleeping during that hour. Instead, I make productive use of that time by lying there half-awake thinking about the most stressful things I have to deal with that day. Scientists say this releases a special chemical in the brain that increases stress. And that helps me keep my mind focused.

When I eventually get up, I make my way to the bathroom, close the door so I won’t wake my wife, and sit on a stool in the closet. It’s a plastic stool that is just the right height. For a five-year-old. Then I open my Twitter feed and start scanning. This doesn’t help me wake up, but it does help me catch up on the latest salary increases for starting associates at big New York law firms.

Once it sinks in that third-year lawyers will be charging twice my hourly rate, I’m in just the right mood to step on the bathroom scale. “All right, that’s it, I’m starting my healthy eating program,” I say to our cat sitting on the counter. “Tomorrow.”

Then, after a shower, a clean, close shave with my Philips Norelco® 5850 electric shaver, and getting dressed, I’m ready to take on the day. But this is where I pause for some alone time in my study downstairs. It’s quiet in the house, my wife and kids are still snug in bed, and the morning sun is just peeking over the horizon. It’s a great time to sit alone and dwell on past regrets and failures.

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Behind the scenes at our photo shoot

I know, they say you should learn to let go of regret and learn from your failures. But I prefer to hold on to those regrets and to keep making the same mistakes. I feel this increases my empathy and “emotional intelligence.”

Once I’m feeling agitated enough, I’m ready to hit the road. I pull into the drive-through lane at the new Shipley Donuts just down the street. “I’ll have four—actually, make that five—original glazed, please.” While I stress-eat my donuts, I head towards Starbucks and turn on some sports-talk radio to find out for the final time if Lebron James is better than Michael Jordan.

Stopping at Starbucks gives me a chance to get out of the car so I can brush off those little shards of donut glaze. When I step out of the car, my glasses fog up, but it’s ok because I don’t need to see the menu inside. The guy at the counter has already put in my order and says “hey, Zach, that’ll be $4.17.” After I scan the front pages of the free newspapers, I grab my double-tall cappuccino.

I’m running late for work, but before driving off I have to vent some frustration about the political news of the day with a sarcastic tweet. “Ha, take that!” I say to no one in particular. You shouldn’t hold that emotional stuff inside.

I have a long commute, so this is the time to educate myself with a podcast on the latest law practice trends. But seven minutes in to “Best Practices for Law Firm Cyber-Security,” I get bored. I switch over to the “Bob Schneider’s Song Club” podcast, so I can hear some stories about B. Schnitty’s drinking days and how he came up with the lyrics to “Cap’n Kirk.”

After about 80 minutes on Houston’s fine freeways, I’m slouching over the computer at my office desk. This is crucial time. Researchers say you have the most mental focus in the first few hours of the work day. So I use that time wisely by checking my blog stats. I can’t wait to see how many people viewed my hilarious post about choice of law in non-compete litigation. The result is underwhelming: 17 views since Monday. And that’s just my family.

Dang it. It’s already 10:30 am and my morning mojo is shot. Time to hit Starbucks again. But maybe this time I should go with the green tea.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation, but he’s angling for an endorsement deal with Philips Norelco. He also wants to kick out the jams and rock the block.

Five Minute Law assumes no liability for incidental or consequential damages that may result from following this morning routine. Photo credit: Eric Wolfe.

 

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? (Younger readers, you could substitute Aaron Rodgers or Tom Brady.)

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?

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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.