The Exceptional Lawyer

November 7, 2008

Fearful Litigators Tell Bad Stories

Filed under: Uncategorized — joshuahornick @ 2:33 pm

Treatises have been written on fear and its destructive impact on all manner of worthwhile endeavors.  Exceptional litigation is one such endeavor.  Many lawyers whom I’ve interviewed identified or confirmed a rampant problem among litigators, which springs from fear.  I call it CYA (cover your a**) litigation.  It is the enemy of persuasive storytelling, which is the heart of good litigation.  

If we fail to tell the best story in court, we may lose the suit, but we generally don’t take too much slack for it.  Persuasive storytelling is an art, like painting.  If I paint a picture, opinions on it can fairly differ quite a bit.  One critic says it stinks.  Someone else says they like it.  If it’s not held up for broad public scrutiny, it’s hard to say that it wasn’t done well.   We can objectively watch a trial (and we rarely do) and later opine that one attorney had trouble connecting with the judge or jury, but it’s easy to explain away with a complicated fact situation, a judicial bias, a jury bias, or other details.  A clear, objective assessment of a litigator’s persuasive storytelling is rarely made, and a marginal drop in the quality of the storytelling is rarely criticized.  The drive to be exceptional, not fear, motivates a lawyer to tell the best story.

On the other hand, if a litigator fails to ask any question that may be significant, it is very easy to pinpoint, easy to quantify, easy to assess.  When we miss a point that turns out to be important, we can take a lot of heat.  So, to cover our a**es, we make a point of asking every possible question.  We make sure that our associates do the same.  Then, if we lose and our client complains, we can protect ourselves by saying no stone was left unturned.  Fear gives birth to CYA litigation.

Of course, it is important to investigate potentially important items and ask important questions.  There is a question of balance here.  However, when we search under every rock–even every pebble, we diminish the quality of our storytelling, sometimes substantially.  We lose cases that we might have won.  It can also be costly and boring.  We fail our clients because our fear of getting caught missing a point overwhelms our confidence in our ability to tell the most persuasive story.

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November 3, 2008

Heads On Sticks Parading Down the Hall

Filed under: Uncategorized — joshuahornick @ 1:31 pm

A department head at the home office of a megafirm described the people management skills in large firms this way.  “Let’s terrorize you. . . Occasionally, cut off a head and parade it down the hall on a stick.”  Partners could benefit from improving their ability and willingness to give feedback, especially negative feedback.

The whole feedback issue is complicated by our love of praise.  Most of us were at were at the top of our classes.  Most of us got comfortable, felt good about ourselves, by always getting “A”s in classes, by always receiving praise from our authorities, who–while growing up–were parents, teachers, and professors for the most part.  

In a system as heavily scored and ranked as modern schooling, it is very hard to get comfortable with “constructive” feedback.  Students in schools (and that includes most of us when we were in school) usually take constructive feedback from people in authority as “negative” feedback.  It’s a bad score, an indication of a failure.  I think that most of us, unaccustomed to academic “failures” (like a C+ on a history paper) would usually double up our efforts in response to such an event and, in fact, learn to overcome our weaknesses.  Still, it hurt us.  It made us uncomfortable.  And, it was always something we sought to avoid.  It worked as a stick, not a carrot.

When we started to practice law, grades were replaced with bonuses and billable hours.  And, we still carried with us the habit of trying to avoid “constructive feedback” which we might now call “criticism.”  Being criticism-phobic, we also tend to be comparatively poor at giving feedback in the spirit of improvement.  We tend to believe that we are wielding a stick, not a carrot, so we withhold it (out of concern for hurting someone or fear of a bad reaction) or we smack people with it.  We end up “Cutting off someone’s head and parading down the hall on a stick.”  This, of course, supports a culture of fear around feedback.

This is a sad state because constructive feedback, when used well, is the lifeblood of ongoing positive improvement of the firm and the lawyers in the firm.  Companies and individuals that master the art of constructive feedback are the most efficient, the most happy, and the most successful.

The good news is that most firms have a tremendous opportunity for growth in this area.  By identifying this weakness, then developing their mastery of feedback communication and action, individual partners and whole firms can improve their internal workings, and ultimately their client representation, dramatically.

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