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March 09, 2015 Articles

Grit, Growth Mindset, and Being a Great Trial Lawyer

By Katherine M. Larkin-Wong

During the 2014 bar year, the ABA Commission on Women in the Profession completed a massive project aimed at providing women, and lawyers generally, new psychological frameworks to assist in their advancement. Roberta Liebenberg, the 2014 chair of the Commission, explained the project as follows:

One of the signature projects of the ABA Commission on Women in the Profession in 2014 is the Grit Project. “Grit” entails perseverance, dedication and a strong drive and commitment to achieve one’s goals. A “growth mindset” is the belief that our abilities are flexible and adaptable, and can be improved through conscientious effort. Extensive research concerning the traits and characteristics of those who have achieved professional success has repeatedly confirmed that the possession of grit and a growth mindset are better predictors of success than pure intelligence, what school you attended, or how high you graduated in your class. Significantly, through teaching, these traits can be developed and enhanced. Grit and a growth mindset better enable you to adapt to and overcome ever-changing obstacles and barriers in the workplace and to realize your full potential.

Letter from Roberta D. Liebenberg, Chair, ABA Comm’n on Women in the Profession (June 19, 2014). Milana Hogan, Carrie Hightman, and I chaired the Grit Project team, which produced a toolkit designed to allow anyone to present or learn about how grit and growth mindset can be applied to career advancement. The training materials contain a background bibliography of the latest research, PowerPoint slides, and even a list of program speakers. To illustrate the real-world application of grit and growth mindset, the training materials contain a series of filmed scenarios to jump-start a program discussion. These vignettes depict important and difficult moments that often arise during the course of a legal career—interviewing for a job, being criticized in an evaluation, and negotiating for origination and billing credit. A detailed facilitator’s guide accompanies these scenarios.

After completing the project, the Grit team was thrilled to receive the support of United States District Court Judge Mark W. Bennett, who had previously written about the importance of grit for litigators. SeeEight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker ‘I Am a Litigator,’” 33 Rev. Litig., no. 1, 2014. We interviewed Judge Bennett about how he has seen grit and growth mindset work for litigators and why he supports the ABA’s Grit Project.

First, can you give our readers a sense of your background?
I am in my 21st year as a federal district court judge. Prior to that, I was a trial lawyer for 16 years and then a U.S. magistrate judge for two and a half years. I founded my own law firm with two other recent law grads in 1975, and the very first case I filed I personally argued in the U.S. Supreme Court. I litigated primarily civil rights and employment discrimination cases on behalf of both plaintiffs and defendants in more than 30 federal district courts. I have taught law school classes for more than 30 years and have spoken at more than 350 CLE programs. I score very high on the grit scale and have learned far more from my many so-called failures than from my successes. I believe growth mindset is important because, in my experience, including trying more than 300 jury trials, perseverance is far more important than raw talent. I have a special interest in this subject as it relates to young women because I am the proud father of a 24-year-old daughter.

Please tell us how you learned about grit and the article that you wrote about grit for litigators.
I have a keen interest in the intersection of law and cognitive psychology, and many of my law review articles focus on this interest. I came across Professor Angela Duckworth’s pioneering work in grit and her grit score test when I watched her in a TED Video. It resonated with me because I have never let my absence of talent get in my way. The “grit” portion of my article focuses on how litigators can actually become great trial lawyers through being gritty and persevering through so-called “failures.”

Why do you view grit and growth mindset as important traits for litigators, in particular, to develop?
Because great lawyers in every area of the law have setbacks, and great lawyers develop the ability to bounce back from adversity and learn from prior mistakes. I am fond of telling my new law clerks and young lawyers: “Don’t worry about making mistakes, but try not to repeat them because there are unlimited new ones to make.”

Can you give some examples of grit or growth mindset as applied in your courtroom?
Several years ago, a young criminal defense lawyer who had tried several cases before me went to a month-long retreat at the Gerry Spence program in Wyoming. On a good day she had been a C+ lawyer. She always had the desire, but in her solo practice she had no role models. When she returned, she was an A+ trial lawyer and just kept getting better and better. In the first trial upon her return she was representing a codefendant in a large cocaine conspiracy case. She gave her closing argument from the perspective of the 50 kilos of cocaine that never met her client. It was riveting. Other examples are young lawyers who lose several cases and make lots of elementary mistakes but stay with it and become fine trial lawyers. I mention in my article that Gerry Spence, perhaps the best trial lawyer of the last 50 years, flunked the Wyoming bar twice and lost his first six or so jury trials.

Some litigators may be reading the definition of grit and thinking of litigators who pursue a point to its death and anger the judge and perhaps harm their client in the process. Is that the way you think of grit? If not, what is the difference in your mind?
Grit is not inconsistent with being gracious and knowing when an issue is not working, making your record, and moving on. Beating issues to death is a common problem of litigators. It’s their lack of judgment on what’s a losing argument, rather than being gritty, that is the problem. If a lawyer has a hard time seeing the difference, perhaps dental school would have been a better choice. I once had a young lawyer who could not get something into evidence that she thought was subject to an exception to the hearsay rule. It was, but not under the exception she kept urging. I called a side bar and told her and opposing counsel that it was a Rule 803(6) business record and I would admit it on that basis. She said it wasn’t and persisted on her exception. It never did get into evidence and she lost a winnable case. Stubbornness should never be confused with grit. Determination, yes; stubbornness, no.

Many of us on the Grit team view growth mindset as the truly revolutionary concept for lawyers because the research shows that most lawyers have a higher grit score naturally. (This statistic makes sense given that it takes some amount of grit to get through law school!) However, we view growth mindset as a way of reframing those “failure moments” that every lawyer encounters. Can you give an example about how growth mindset might help a lawyer reframe, for example, a lost motion or a bad hearing?
My analogy is to pro golfers. Michelle Wie is a great pro golfer because she has the mental ability (grit and growth mindset) to let go of her bad shots and not dwell on them but quickly diagnose the problem and learn from it. This was an acquired set of skills for her, as it is for all of us. Lawyers are no different. Dwelling on mistakes rather than applying growth mindset principles keeps lawyers (and everyone else) from moving forward. Also, when you learn to forgive your own mistakes and learn from them you become, as a huge added advantage, more forgiving of others. I know this to be true; I have learned that the hard way.

What else do you think litigators should know about grit and growth mindset or how to develop them?
They are the keys to more rapid success in any field, but especially in litigation, because no lawyer wins every motion, every ruling, or every trial. The best combination of attributes is grit, graciousness in both winning and losing, and learning from so-called “mistakes” and then letting go of them. The most admired lawyers are both gritty and gracious. The cognitive science of learning grit is still in its early development, but being aware of the role of grit and growth mindset in moving forward is a huge start. Thanks so much for the opportunity to be interviewed for this wonderful and incredibly important project. I am deeply honored to participate, even in this tiny way.

The Grit Project team, the Commission on Women in the Profession, the Woman Advocate, and I would like to thank Judge Bennett for this interview. In a true demonstration of his grit, Judge Bennett completed this interview in the midst of presiding over a three-week trial and working 16-hour days. We cannot thank him enough for his support of the Grit Project and his own display of grit in completing this interview during a very busy time.

If you are interested in bringing the Grit Project to your firm, women’s initiative, bar association, or other group, please contact Natale Fuller, the ABA staff lead for the Grit Project.

Keywords: litigation, woman advocate, grit, growth mindset, trial lawyers, Commission on Women in the Profession, judges

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