Zen and the Art of Trial Advocacy

I’ve been listening to a terrific set of audio tapes called Stop Your Whining and Go to Trial by Rick Friedman and Don Bauermeister. It draws on the most recent research on the way our brains react to certain themes and stories and applies this research to trials.  Some of the advice is familiar and some is quite new. For example, we are reminded that we need to claim the moral high ground at trial and that showing bad choices made by the liable parties is important in doing so. This is probably not news to anyone who has tried many cases, but it is important to be reminded that trial lawyers do need to search for the moral truth at the heart of each case.  Friedman and Bauermesiter give some good examples and they freely share numerous resources.  Among the recommended reading is Neil Feigenson’s book on legal blame and Friedman’s own book Rules of the Road.

But is was something else that really resonated with me. Friedman spends some time talking about the uncomfortable subject of comparison. That is, lawyers comparing themselves to other lawyers.  He sees it as a form of fear, connected with ego. As Friedman explains it, lawyers probably fear going to trial (maybe even subconsciously) because they don’t want to suffer a loss or a low verdict and thus compare unfavorably to other lawyers. This idea, while it seems so commonplace, resonated with me.

How many times have we been in a conference or seminar, and the speaker is introduced by reference to his/her gigantic verdicts, their professional accomplishments, and their book-length resume. The thought going through many attendees’ minds is probably something like “Wow, I could never do that” or “Gee, she’s so brilliant, I could never got those kinds of results.”  I’ve certainly had those thoughts, as has nearly every trial lawyer I know, and it can be a struggle to fight against the temptation to be afraid of the inevitable comparisons that may follow if you lose a case or don’t get a big verdict. Connected with this idea, Friedman also suggested something I don’t think I’d ever heard in any other CLE:  we should truly enjoy the success of other lawyers, and not worry about whether we will ever have the same success.  Not easy for competitive lawyers, right? But wonderful advice.

Friedman’s thoughts on focusing less on ourselves and more on the work itself sounds a bit like Pirsig’s Zen and theArt of Motorcycle Maintenance or Crawford’s Shopcraft as Soulcraft.   It was a tonic to me to be reminded that if we just take one step at a time, concentrate on doing good work and focus on our clients, we will probably lose ourselves in our work and not worry so much about outcomes or comparison.