April 19, 2021 Sidebar

Be Yourself, Sell Yourself

You are different, unique really. Some crazy combination of genetics, environment, and personality. And if you adopt the persona of another, you will fail.

Kenneth P. Nolan

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It was my second medical malpractice trial, and this time, I was determined to win. In the crowded courthouse corridors, I was enthralled by those with bright voices and shiny Rolexes who boasted about how they kept the defendant doctor on the stand for “six hours,” “a day and a half,” “three full days,” until the jury showered them with riches. Yes, I would do the same—berate the poor slob, emphasize his ignorance, and catalogue his failures until everyone applauded my genius. Length, I reasoned, meant victory.

After two hours of accusatory and flamboyant questioning of the sad but somewhat sympathetic doctor, the judge called a recess. “How much longer are you going to be, Mr. Nolan?” he asked with repressed ire. “Another hour or two, at least,” I replied with only a touch of indecision. Face red, the judge exploded: “You’re screwing it all up. You’re just going over and over the same crap.” I knew he was right. Even my enthusiasm was fading as the jury sighed and shifted impatiently in their hard seats. Relieved, I quickly asked a few more questions and sat down.

That wasn’t the only reason I lost, but that painful experience taught me many lessons: To win, you need obvious and overwhelming liability, especially in conservative Staten Island. Humiliating a helpless witness arouses a jury’s empathy, leading those once-impartial citizens to view you (and your client) with unmistakable bitterness and disgust. Finally, and most importantly, you can’t be someone else. You have to be you, warts and all.

For you are different, unique really. Some crazy combination of genetics, environment, and personality. And if you adopt the persona of another, you will fail. Everyone despises a phony, and if you parrot those who charm with voice, insight, and wit, you are dishonest about who you are. And your adversaries, judges, clients, and juries are not morons. If you lie about yourself, why should they believe anything you say?

I know, I know—you’re shy, tongue-tied, awkward, not Hollywood stunning. You can’t speak three words without an “er” or “um.” And you’re nervous all the time, whether meeting a client or arguing a simple discovery motion before some weary judge. So you’re not the funniest, the most loquacious or persuasive. Big deal. Few are beautiful; even fewer are extremely talented. Most lawyers are average or a touch above. And your deficiencies are more obvious to you than others. Overcome them with effort and determination. Make your argument with clarity and conviction. Law isn’t ice dancing—you’re not graded on style points.

And this applies to all aspects of your work: interacting with staff and colleagues, handling a pretrial conference, or crafting a memo. You can always improve, but you’ll never write like Joyce or orate like Obama. Since you’re going to lose your share anyway, emulate Sinatra—do it your way.

That’s not to say I didn’t sneak into courtrooms to observe charismatic trial lawyers as they pranced about, nor does it mean that I didn’t harass the more experienced with questions. I never hesitated to barge into a partner’s office whenever I had a doubt—which was always—even when the response was, “Did you even go to law school?” After all, that’s how you learn: by asking three partners the same question to ensure their answers are consistent. Once you gain some confidence, you’ll no longer blindly accept their wisdom. You’ll adapt their advice to your strategy.

The mantras that “everyone’s equal” and “you’re not better than anyone else” have somehow become dogma among the millennials. Nonsense. Some are faster, smarter, better looking. Everyone who combs gray hair believes our childhood was better. Of course it was and, unquestionably, more genuine. If you couldn’t drain a jump shot, you didn’t make the team. “I’m not picking you—you stink” was often heard when teams were chosen for our street games. Even our nicknames were candid: Jackie Fats, Tiny Murphy, and Butterball Lang were, well, big-boned; Whistler Mahoney had a lisp, and I was Beano because I was skinny as a string bean. . . . Try that in gentrified Brooklyn today, and you’ll be banned from every overpriced farm-to-table, organic, all-natural, fair-trade, grass-fed, gluten-free artisanal shop.

This philosophy has carried over to our profession, where young lawyers believe that if they celebrate a skill, an achievement, they diminish their colleagues. Because everyone is equal, “gifted,” how can I be better? Somehow it has become unseemly for young lawyers to admit they wrote a killer brief or took an illuminating deposition. The result is that the young deflect and deny accomplishment. This is wrong and counterproductive.

Spoiler alert: Law is a business, and to be successful, you must win cases, satisfy clients, generate business. Of course, you could always do better. But that doesn’t mean you weren’t more skillful than your adversary. To become a valued, sought-after attorney, you must win. Trying hard no longer gets you a trophy. Lawsuits are more than simple disputes; they’re often grueling battles. General counsel demand lawyers who are relentless, creative, and expert.

Sell yourself. It’s really OK to brag—tastefully of course. For if you don’t communicate your success, no one will know. And the legal world is based primarily on reputation. Don’t be afraid to mention that you’re a shrewd, insightful litigator. In the past, we did this through newsletters, brochures, and other firm propaganda published on that antiquated material known as paper. Today, there’s TikTok, Insty, Twitter. . . . I’ll leave how to communicate in those media to those who cherish their first cell phone the way I treasure my first baseball mitt (Bob Turley), which I still have.

I can hear the doubt: But that’s so tacky, so sleezy. Good lawyers, I submit, have an obligation to let potential clients know of their abilities. The alternative is to allow the less ethical, those who are all glitz and hogwash, walk away with the retainer. If you don’t publicize your abilities, you’re harming not only yourself but clients as well. “Don’t you feel like an ambulance chaser,” a young lawyer once asked me, “when you go to the hospital to sign up a client?” “No,” I replied. “As long as I’m invited, I have an obligation to go. Otherwise, they may retain someone who will take advantage of them.”

Not easy to talk about yourself. In my insulated, parochial world, murderers received more sympathy than one branded as “full of himself.” The last-second basket, the game-winning homer was “just lucky, I guess.” Pride, as St. Augustine wrote, “changed angels into devils; it is humility that makes men as angels.” My childhood’s sense of self was based on achievement; we kept score. Praise was reserved for the victorious, for those who excelled and only for those. “You lost. Good. Get used to it,” my mother would preach. So I had to force myself to admit that I was as proficient as the next person, that I had some ability.

This wasn’t easy. Early on, I thought I’d never see a client smile and say, “You have a pen? Where do I sign?” No one secures every retainer, wins every trial. You, too, will lie awake and wonder what you did wrong, why everyone else can convince the judge, why you ever chose law. But the day will arrive when you’ll celebrate victories. Hang in there, it’ll happen.

Learn to accept and appreciate compliments. While the jury was deliberating during my first trial, my adversary, experienced and effective, mentioned that my closing was very good. Since I had no idea what I was doing from the moment I entered the courthouse, I thought this was sarcasm, that he was making fun of my ineptitude. But no, he was serious (and gracious). Instead of believing the jury award of $75,000 was simple dumb luck, I realized that I must have somehow contributed to the result. Maybe, just maybe, this lawyer gig will work out.

On occasion, I heard similar sentiments: “That was a good deposition of the pediatric neurologist. I’m going to offer you some money,” said a no-nonsense trial lawyer during a very difficult liability case. And he did. If you pay attention and don’t dismiss praise as mere pandering, you, too, will hear similar sentiments. These simple words of praise, however, never erased my nightmares when my opening was pathetic or when my argument omitted a seminal case or crucial document. Like me, you’re not perfect, but you have strengths and skills that set you apart. Don’t hide these; accept them. Have the confidence and integrity to mention them occasionally. It’s OK. It really is. By the way, when you cite a particularly impressive victory, it’s not necessary to enumerate your many failings. Everyone knows you’re not a superhero.

We want immediate and continual success. Alas, life, with all its wonder and joy, is often painful and frightening, as the pandemic has so heartbreakingly emphasized. Law is a journey that demands perseverance and effort. Accept who you are. Identify and develop your many qualities, integrating them into your work, your life.

Kenneth P. Nolan

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