Litigating Against the Grain

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Trial lawyers are creatures of habit. Despite big talk about how creative or groundbreaking one litigator or another might be, in reality we have a strong tendency to fall back on what has worked for us already. Success breeds repetition. If an approach or technique helped us before, then we’re likely to try it again. And if something we tried failed, it will be a long time before we try it again.

Of course, that unscientific approach has flaws. It’s often difficult—sometimes impossible—to know why an approach failed or succeeded, or what role a particular tactic played in the outcome. After all, trials aren’t a best-of-seven series.

That said, there are moments looking back when I ventured out on the ledge, so to speak; when I did something unorthodox, risky, and against the grain, all in furtherance of my clients’ goals. Those moves were made when I thought taking the risk was necessary, either because the case was particularly challenging or because I believed something different was needed to capture the attention of the judge or the jury.

I haven’t done this often, but when I have, it has paid off memorably. The cases that come to mind differ but have one noteworthy attribute in common—in each instance, success came after I did something more than one person told me wouldn’t work.