The Magic of Successful Legal Practice? Mark Twain said, “All you need is ignorance and trust; then success is assured.”
OK, so he wasn’t focused on the legal profession. Still, the trust part is understandable. The ignorance maybe.
As lawyers, we have to convince. It helps to be alert and to obtain and use certain information or to know when not to use it. I found that it all comes down to understanding and appreciating the human element. Those you need to convince must like you and/or your case. Or as Tweedledee in through the mirrors said: “on the contrary.” You don’t have to like the other side or their case. (My quote from Tweedledee is limited to just the “opposite”).
Everyone, whether judge, jury member or client, has quirks that determine their likes and dislikes. And to spot these quirks, it helps to notice their reactions and gauge which way the wind is blowing.
I remember being in a petitions court once. The judge seemed impatient and regularly interrupted the lawyer with the words: “Your reasoning does not enlighten me.” This worried me as I waited to be called. I initially thought my odds were about 30/70. Given the judge’s apparent mood, my confidence level dropped a bit. That’s my assessment too.
My opponent, more experienced than I was, was dressed to kill, wore a smart three piece suit and carried a gold chain pocket watch in his waistcoat. He reminded me of the lawyer Sir Wilfrid Robarts, portrayed by Charles Laughton, in the cult film witness for the prosecution.
He rose first to argue and frequently glanced at his pocket watch. He sounded smug and implied that my opposition to his request was a complete waste of the court’s time. The judge didn’t interrupt him at all. Oh oh! However, he fidgeted uncomfortably whenever “Sir Wilfrid” touched his pocket watch or even his waistcoat.
It was my turn. I took a risk and opened with, “Your Honor, I trust you will find my reasoning insightful.”
The judge quickly smiled and said, “Proceed, sir.”
He eagerly raised his pen to take notes. I didn’t know what to think of it. I didn’t dare look at my watch.
Luckily his judgment was favourable. Did he like my case? My opening joke? Or maybe he just didn’t like the other attorney’s gold pocket watch. I will never know. But he must have liked (or disliked) something that enlightened him.
I remember another case, shortly after I was called to the Bar, representing a client in a traffic court for a minor misdemeanor. It rained. Little did I know when I was in the courtroom that I had to take off my light colored trench coat. When my case was called, the JP discreetly instructed me to remove my trench coat and said, “It doesn’t rain in here, Columbo.”
I excused myself and took it off. After a quick try, the JP said to me, “Summation Lieutenant?”
The charge was dismissed. I didn’t think my argument was that great. And my confidence was shaken a bit. Was success favored by my ignorance? Or maybe the judge just liked Columbo? Something convinced him.
I was not so successful in another trial, in which I wanted to provide evidence just before the lunch break. I said confidentially to the judge, quoting Shakespeare, ‘I’ll hurry. ‘Brevity is the soul of wit.'”
The judge responded, quoting French humorist Rabelais: “Okay, sir, but remember, ‘An empty stomach has no ears.'”
To this day I regret going with Shakespeare over Rabelais. My ignorance brought no success here.
And can openness and honesty sometimes hurt? Whenever I interviewed a client on a personal injury case, they asked me how long the case would last? (This question was followed by “How much do I get” followed by the words “How much do you get?”)
Because these cases can take years to solve, I would point to a big old maple tree outside my two-story suburban office and say something like, “Before this case is settled, these leaves will change color, then fall off, and then will.” the branches will be covered with snow and then the leaves will grow back. This cycle will repeat itself”
Not long after that play in a potentially lucrative case, the client fled and joined an attorney in a high-rise downtown office. I asked my successor why the client dropped out. He told me I gave him the impression his case would drag on forever. The customer didn’t particularly like my story about the tree.
This explanation annoyed me. It was the truth. At least he didn’t file a disciplinary complaint with the Bar Association, alleging that my attorney was callous and cold-blooded. He compared my fall to a pile of leaves.
And what does it take to be successful? We all know methods like “don’t overdo it”, “keep it simple” and use stories and analogies. All true, although I’ve crossed out here with this analogy of this maple.
We need to recognize that we are constantly being judged by what we say or do, or sometimes vice versa; what we don’t say or do. Aristotle said, “Wisdom is the reward of a lifetime of listening when you would rather have talked.” No doubt he meant listening and observing.
But isn’t it important to have a feel for the human element?
One more thing. did i persuade you
Marcel Strigberger has retired from his trial practice in the greater Toronto area and is continuing the more serious business of humorous author and speaker. His book Boomers, Zoomers, and Other Oomers: A Boomer-Biased Irreverent Perspective on Aging is now available in paper and e-book versions wherever books are sold. Visit www.marcelshumour.com. follow him @MarcelHumor.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s company or its clientsthe lawyer newspaper, LexisNexis Canada or any of their respective affiliates. This article is for general informational purposes and should not be construed as legal advice.
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