September 01, 2016

Be Not Afraid

Ego prevents good lawyers from becoming great.

Kenneth P. Nolan

I love to worry. Even though it has been decades since our last drought, and every winter we’re slammed by another record-breaking snowzilla, I check the New York City reservoir levels daily. It’s inevitable that global warming will turn verdant, lush Brooklyn into the Sahara while melting the ice caps, inundating all of Manhattan below the ninth floor. This time I’m leaving the cockroaches off the ark.

And don’t get me started on all these new devastating diseases—Zika, mad cow, Lyme, Ebola, listeriosis, swine flu, dengue fever. Growing up we just had dull, normal illnesses—measles, chicken pox, mumps. But people are much more fragile now. No one died when we all sipped from the same soda, licked the same ice cream cone, or pulled gum from our mouth to share with a pal. Today every guy who makes a ham on rye wears more protective gear than an astronaut, yet every child has allergies—nuts, dairy, dust, latex, gluten, pollen. If you can’t eat a PB&J on white, how are you gonna survive when a norovirus lands at Coney Island?

It’s fun to pop up in the middle of the night to contemplate a dirty bomb in dirty Times Square, the annoying hipster invasion of Brooklyn, or the judge tossing your most lucrative case. If these don’t bother you, consider the crazy Middle East. Pick any two countries and you can name a dozen reasons why they’ll be at war this weekend. If all else fails, there’s the hapless Jets.

The Value of Worry

I’ve always done this, worried about the world, my family, my practice—too little business, then too much. About the ridiculous law, the goofy judge, the unpredictable jury. But all lawyers worry. At least the good ones. Sometimes at 3:00 a.m., you’ll finally realize why the Answer included that affirmative defense. Worry makes you skeptical, detail-oriented. Makes you obsess over deadlines, statutes of limitation. “Can’t you at least say hello first before you ask when the accident occurred?” I was asked more than once.

Excessive worry morphs into paranoia. Which, according to Andrew Grove, former CEO of Intel, is not all terrible. His book, Only the Paranoid Survive, emphasizes attention to detail as well as “constructive confrontation,” the ability to voice opinions to everyone in the company. This most successful philosophy applies to our work as litigators: So search all discovery documents until you unearth the smoking gun; question all witnesses until you obtain the crucial concession; study the law and cases until you understand all the nuances.

Always seek assistance, criticism. Ego prevents good lawyers from becoming great. Experience in the courtroom is invaluable, yet trying cases the same way for decades may no longer be effective in this reality show era where all know Brad Pitt but not Joe Biden. Today change is the only constant. If you don’t adapt, you will slink from the courthouse carrying your cardboard blow-ups while your adversary and his iPad celebrate with kale salads and flutes of Cristal.

Change is challenging for us who have gone from carbon paper to no paper, from talking to texting. But listen to those who never dialed a rotary phone, whose idea of ancient history is the Reagan administration. Make sure your theme, argument, exhibits, and even your dress achieve their purpose. Consult the new associates, the administrative staff, the woman who drives your Uber. After all, the jury is ordinary folks who think Martha’s Vineyard is a winery.

Litigation is often solitary work. In the quiet of our office, we sit for hours writing memos of law, preparing outlines, reviewing documents. Only when those are completed do we seek suggestions, advice. Ask for input before you begin; seek counsel during the process. When finished, circulate the product—hunt for improvements, for something you overlooked. You can always ignore another’s suggestion, but you never want to shout after a loss, “I can’t believe I didn’t think of that.”

Too much of anything is not good, even pizza. In trial work, worry can paralyze, limit your options. Do not fear failure. Being too cautious, always accepting half a loaf, will impede your ability to win. Be ready to question a witness, argue an appeal, try a case, take a verdict. Tell the mediator, the judge, “We ain’t settling,” and then turn and walk out. Be firm, be confident.

The Value of Loss

“I didn’t fail enough” is a lament that is instructive. Losing stings, but you learn, prosper from it. Sports taught me to lose. Growing up, the streets and schoolyards were teeming with too many kids. By 9:00 a.m. whenever we didn’t have school, Moms would order us to go out and play, which we did until dusk. Space was limited so teams waited while we played 3-on-3 basketball or our many street games. If you lost, you sat.

By age 10, we realized that someone’s always faster, stronger, can jump higher. Which is why the “every kid makes the team/every kid gets a trophy” philosophy is so harmful. How will the pampered ever deal with tragedy, failure, as an adult if it was never experienced when young? If you’re too small to make the basketball team, as I was, take up tennis, golf, lacrosse, music, swimming, chess. You will be forced to explore other activities until you find one you can be proficient in.

Only those who never play never lose. You can’t win them all. Jack Nicklaus won 18 golf majors, but finished second 19 times. You too will hear the jury gleefully toss you and your client out onto the cold sidewalk. But you must try. You must volunteer to write the brief, take the deposition, argue the motion. If there’s a dog case that has to be tried, raise your hand.

In aviation disaster litigation, the litigation is handled by committee. Twenty, thirty big-shot lawyers appear at the first conferences, each vying for notoriety, for face time on the news. Distinguished and successful, they are the pinnacle of the profession with national reputations and accolades. Yet, when hundreds of thousands of documents arrived, many scurried to their offices to hide behind their plaques from the Kiwanis Club. Those who commanded the initial spate of telephone conferences, issuing thundering edicts like God to Moses on Mount Sinai, were strangely absent as the litigation dragged.

When new to this process, I was surprised because I expected those who talked large to act large. So when it was time to assign the depositions, I assumed these Masters of the Bar would insist they question the chief pilot, the experts. Silence. So I volunteered. I knew that my expertise in aviation, at that time, was limited, but I knew how to prepare, ask a question. So I studied, sought guidance, and came to the dep with a yellow pad filled with notes. Hard work but fun.

This is what young attorneys must do. Take depositions. Try cases. Sure, it means days and nights of study, but that’s how you become effective, by doing, failing, and pulling yourself off the canvas for another round. You will gain respect and your reputation will grow as one to be feared.

To get to verdict today, you have to attend innumerable mediations and so many court conferences you know each clerk’s birthday. But if you can’t try a case, take a deposition, write a brief. If you’re a young associate in a giant firm that limits your responsibility, do pro bono work. The Corporation Counsel of the City of New York has a program that permits outside firms to staff cases so young lawyers can gain experience while defending my tax dollars. If programs such as these exist, volunteer. If not, seek pro bono cases that allow you to appear in court, question witnesses, do trial work, which was so plentiful when I first started. And while learning, you’re doing some good.

Be a renaissance lawyer; be proficient in many areas—trials, research, writing briefs, appeals. Don’t limit yourself to one narrow slice of the profession. Look at Kodak—made mostly obsolete by technology. Same with the law. Expand your expertise. Don’t be afraid to wander outside your comfort zone into other areas—corporate, securities, class actions. The more you know, the more valuable you are, especially in this age where legal jobs evaporate all too quickly.

Even I wrote briefs and argued appeals. I could have passed the chore to another, but, although nerve-racking, it was instructive and built confidence. By doing, you learn that there’s no secret elixir that transforms you into Clarence Darrow. You realize that even those lions of the bar are not perfect, but mostly ordinary. Sure, some can enthrall with voice and words, but very few. Most succeed through hard work and experience. You can too.

It’s not easy to be a litigator. The pressures are much greater than when I started decades ago. Embrace them, use them to succeed by not fearing failure.

Kenneth P. Nolan

The author, a senior editor of Litigation and the author of A Streetwise Guide to Litigation (ABA Publishing 2013), is counsel to Speiser, Krause, Nolan & Granito, Rye Brook, New York.