Get off to a good start. Once the gun goes off, there are no do-overs. You don’t get to go back and tighten your shoelaces or think through the best way to maximize your power coming out of the blocks. That’s why you have to do all of your preparation in advance.
However you define success, you won’t get there without planning and preparing for the journey. Use the early victories and failures to guide your steps toward a career of more of the former and less of the latter. Most of us in private practice do not make it to trial as much as we would like these days. We settle many more cases than we try. The lack of courtroom opportunities can lead to complacency and, in the worst case, a regression of your trial skills and instincts, which will be difficult to redevelop. To combat this, set your game plan early and approach every dispute as if you could one day end up in court or before an arbitrator. This approach to litigation will keep your creative juices flowing and help you sustain the energy and intention necessary to achieve a favorable outcome.
Measure your steps. Fourteen. That’s how many steps I aimed to take between each hurdle. Now, the speed, efficiency, and endurance required to ensure the same 14-step stride between every hurdle in every race was something I never managed to achieve. (I like to think that by not being better at the hurdles, I was able to realize my true destiny as a corporate employment lawyer. Who needs multimillion-dollar athletic endorsements when you can have all the “free” law firm breakroom coffee you can drink?) But part of getting better was learning to recognize and appreciate each segment of the race as part of the entire 10-hurdle challenge. Working to improve upon each set of 14 steps (more or less) brought me that much closer to a better finish overall.
Breaking your litigation strategy down into smaller, more manageable chunks not only provides you with regular benchmarks by which you can measure your progress but also reduces some of the stress associated with trying to tackle one enormous project all at once.
Realize that precision is more important than speed (but speed is pretty important). The amount of time we spent just running during track practice was outweighed only by the amount of time we spent learning how to actually jump a hurdle with precision. Without the proper mechanics, it didn’t matter how fast you were—you were most certainly going to lose. But even the most precise hurdler still has to be fast. Remember the gold medalist who ran slower than everyone else but jumped every hurdle with perfect precision? Exactly.
In a world of unbending billable-hour requirements and oppressive client and court-ordered deadlines, we often do not have the luxury of spending unmeasured amounts of time conducting exhaustive legal research and analysis to find the perfect answer or implement the bulletproof litigation strategy. But we also cannot afford to make too many of the careless mistakes that come with cutting corners or rushing to provide a “good enough” solution.
So we have to be both creative and careful. Effective and efficient. Successful litigators have to learn how to balance the time and dedication required to constantly perform at the highest level against the professional obligation to get all the work done by the deadline.
Trust the forward momentum. Sometimes being in the thick of a complex dispute can feel like being stuck in actual mud. No matter how hard you’re driving your knees and swinging your arms, you are just not moving. Lots and lots of talking, but next to no action. When you get to these moments, try to shift your perspective. Go back and look at where you were when you started. You didn’t know all the facts. You didn’t know all the players. Maybe you didn’t have a good understanding of what your client expected from you. Chances are most, if not all, of those things have changed, and things have moved much farther along than what it seems. Sometimes the best way to get to the finish line is to remain focused on putting one well-prepared, well-trained foot in front of the other.
Stay in your lane. One of the only ways to get disqualified in a race is to veer into someone else’s lane. The obvious reason for this rule is that leaving your lane interferes with and endangers other runners. The less obvious reason is that stepping into the next person’s lane will take you off your own course. Even if it wasn’t against the rules, moving outside of your lines will slow you down and lessen your chance of winning.
Litigation is a high-pressure environment. We are constantly competing with our adversaries and, at times, our colleagues. She speaks loudly, so you practice raising your voice. He is known to give poetic opening statements, so you brush up on your Amanda Gorman references. This approach is great . . . if you’re good at it. If not, it’s a disaster.
There is certainly some utility in identifying certain traits or communication styles that you can adopt and use to your advantage. But before you do that, take some time to figure out who you are and what you do well as a litigator, and work on developing those skills. You’ll never win your race if you’re busy trying to run (or ruin) someone else’s.
Don’t forget to jump. If you’ve ever watched hurdlers preparing for a race, you’ve seen them casually jump a few hurdles quickly before they eventually run up close to one and knock it down with their hands. There’s a reason why you see this happen only in practice. In the actual race, you don’t have the option of running really fast, then stopping to walk around the hurdle or moving it out of the way with your hands. The ultimate goal is to jump the hurdle (or at least try).
When you are engaged in or managing a litigation matter, you have to litigate. Of course, this means different things under different circumstances. But the end goal is always for some action to be taken, for some strategy or plan to be implemented. And often we have to do this over and over again. No dispute ever has only one “hurdle.” As you approach each one, figure out how to clear it before moving almost immediately to the next one.
When you fall, get back up . . . quickly. There is no “if.” It will happen. You will stumble. You will fall. You will get tripped up, and sometimes it’s your own fault. If you’re fortunate, you will get to the point where getting back up becomes a natural reflex.
Immediately after the tumble in my nearly victorious race, I actually got up and tried to finish, even though my knee looked as though I had tried to scale a barbed wire fence. Sometimes we spend so much time obsessing over missteps that we forget to keep going. The next time you make another non-life-threatening mistake (which is—news flash—how you can categorize nearly every mistake in civil litigation), you should acknowledge the issue, identify and implement a solution, and move on. Wallowing won’t solve the problem, and no one benefits from your sulking and self-loathing except for the runners on either side of you, who will just keep going.
Eyes in front. I’ve always had a bad habit of looking up and out into the distance when I’m running. Not great for jumping hurdles. Or handling litigation.
Stay focused on the task at hand and the goals you’re trying to accomplish. As litigators, we have to be able to see the forest and the trees at the same time. Clients count on us to scan the horizon while managing the risks and challenges encountered on the way. Take each one as it comes, but always maintain your awareness of the bigger picture.
Sometimes you don’t realize you’re winning until the race is almost over. Hurdles are staggered around a track. You often can’t tell who is in the lead until the runners come around the final turn and the lanes begin to even out. The runners who start out fast often lose steam and finish at or near the back, while those in the middle of the pack wait patiently for the perfect opportunity to shift gears and overtake the lead just in time.
There will be periods during stressful or high-stakes litigation matters where you feel like all of the wins and successes are on the other side. In these moments, resist the urge to measure yourself against your adversaries. Instead, take these opportunities to refocus on your goals for the litigation and your client’s definition of a successful outcome.
All’s well that ends well. When you start the race, the last hurdle is actually behind you. If you look back, you can see it. But you have to make it all the way around the track to actually get there—there are no shortcuts.
The reality for most collegiate athletes is that they will not go on to compete professionally. So we have to be clear on the reasons why we choose to invest the time and energy in an activity that, in many respects, appears to provide little or no payoff. For many, the thrill of competing is what gets them going. For others, like me, it is the sense of belonging and fulfilment that comes with being part of a team of dedicated people working together to achieve a shared objective. Then and now, I find that I am the best version of myself when I am leveraging my strengths and finding ways to make meaningful contributions to be of service to others.
Outside of trial victories, litigation often ends with something less than a satisfying conclusion. More often than not, if you don’t lose outright or succeed through some unceremonious motion practice, you negotiate an anticlimactic settlement and find yourself simultaneously consumed by both exhaustion and frustration, trying to answer existential questions about why you chose the path of law in the first place.
You cannot count on the finish to make you happy—especially if you don’t win. So you have to find meaning and fulfillment in the path along the way. If you love the research and writing parts of your job, seek more opportunities to do that work. If your strength is negotiation, take the lead in mediation. And celebrate the little victories along the way—even if you trip on the ninth hurdle, at least you made it over the first eight.
I have not jumped an actual hurdle in over 20 years. Navigating a demanding litigation practice comes with its own challenges that keep me on my toes. Each client is different; each case is unique and comes with its own proverbial hurdles. Sometimes I just barely manage to clear them. Other times, I jump over them so smoothly it doesn’t even look as though I left the ground. And still other times, I slam right into them, face first. But even then, I find a way to get back up and walk away. Maybe with a new scar but always with another story to tell.