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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