The Biggest Success-Killer for Litigators

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I sat across the table from my friend, a criminal defense lawyer. We were eating an early-morning breakfast in a St. Paul diner and chatting about what it takes to be a good litigator. Our food arrived—oversized portions of hash browns, eggs, cheese, you name it—and as we dug in, he let me in on a secret.

It had nothing to do with finding the right clients or managing your reputation or blogging to build authority. These things help. But blogging, for example, will not make you a good litigator.

What my friend told me, I realized later, was really the biggest success-killer for litigators.

Failing to Tell the Truth (or Not Saying What You Think)

At some point, the legal profession got a reputation for being untrustworthy and manipulative, as if the words “lawyer” and “liar” were synonymous.

As a litigator, you’ll regularly deal with opposing counsel, and these exchanges will not always be pleasant. Dealing with opposing counsel is, at bottom, a “soft skill,” one that will serve you in achieving positive outcomes in litigation.

The trick is to not let opposing counsel get you down.

It’s easier said than done, but how is failing to tell the truth, or failing to say what you think, the biggest success-killer for litigators?

The Biggest Success-Killer is Our Default Setting

Paul Graham, computer programmer and startup investor, wrote that suppressing your feelings is an error of omission.

(Graham started Y Combinator, the Silicon Valley investment firm that got Reddit and DropBox off the ground, so he knows something about success.)

Graham writes:

“Errors of omission are a particularly dangerous type of mistake, because you make them by default.”

In other words, the biggest success-killer for litigators—not telling the truth about what we’re thinking and feeling—is our default setting. So we don’t even realize we’re killing our own success.

How to Defeat the Biggest Success-Killer

If we don’t tell the truth, if we refuse to be genuine with each other, as Bronnie Ware writes in her top five regrets of the dying, we will always sabotage our success as litigators.

My friend, the criminal defense lawyer, would argue with a certain prosecutor. In every case, on any issue of law or fact—whether the sky was blue—they’d argue. It didn’t matter that no judge or jury was around to hear their arguments.

Then, one day, my friend attempted to change his own default setting.

I’ll paraphrase:

“Look,” he said, “we can keep doing this every time we see each other. But it gets us nowhere. It gets the case nowhere. And it hurts me as a person to argue with you. It makes my life suck as a lawyer. Instead, if you want to debate the facts, let’s just do it in front of the jury…”

As my friend described it, saying what he felt turned the prosecutor’s face white.

From then on, the negotiation went ahead on its merits, not on bluster. Whether that’s a good or bad thing depends on your perspective, but in learning to overcome the biggest success-killer for litigators, my friend took one small step toward becoming a truly great lawyer.

Lawyering Skills

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