What does it take to have a successful law practice? This question brings to my mind a quote from Mark Twain who said, “All you need in this life is ignorance and confidence, and then success is sure.”
I doubt he was focusing on the legal profession. And although the confidence part is understandable, I am not so sure about the ignorance part. As lawyers, we have to be able to be persuasive. And to excel in this endeavor, it helps to be observant and to attain and use certain information—or even to know when not to use it.
I found it all boils down to understanding and appreciating the human element in each situation. Those you have to persuade have to like you and/or your case. Or as Tweedledee in Through the Looking Glass said, “contrariwise”; they have to dislike the other side or their case. (My quote of Tweedledee is confined only to “contrariwise.”)
For better or for worse, all of them—be they judges, jury members or clients—have quirks that govern their likes and dislikes. And if we do not know their quirks, it is helpful to notice their reactions and assess which way the wind is blowing.
I recall once being in a motions court before a judge who seemed impatient, periodically interrupting counsel and saying, “Your argument is not enlightening me.” This concerned me as I waited for my case to be called. I initially thought my chances of winning the motion were between 40% and 60%. Given the judge’s apparent mood, however, my confidence level plummeted a bit. So did my assessment.
My opponent, more seasoned than I, was dressed to kill, wearing a fancy three-piece suit and sporting a gold chain pocket watch in his vest. He reminded me of the senior barrister Sir Wilfred Robarts, portrayed by Charles Laughton, in the iconic film Witness for the Prosecution. He got up to argue first, frequently looking at his pocket watch. He sounded a bit smug, suggesting my opposition to his motion was a complete waste of the court’s time. The judge did not interrupt him at all. This concerned me. I noticed the judge was fidgeting uncomfortably a bit, especially whenever the other lawyer touched his pocket watch or even his vest.
When it was my turn to speak, I took a risk. I opened with, “Your Honor, I trust you will find my argument enlightening.”
The judge emitted a quick smile and said, “Proceed, sir.”
He eyeballed me squarely and eagerly, and lifted his pen to make notes. I did not know what to make of it. For one, I did not dare sneak a gaze at my wristwatch.
Fortunately, his ruling was favorable. Did he like my case? My opening quip? Or just maybe he did not like the other lawyer’s gold pocket watch. I’ll never know. But he must have liked (or disliked) something that enlightened him.
I recall another case soon after getting called to the bar where I attended traffic court and represented a client in a minor offense. It was raining, and once in the courtroom, I neglected to take off my light-colored trench coat; I did not know I had to remove it. When my case was called, the judge discretely hinted to me about removing my trench coat saying, “It’s not raining in here, Columbo.”
I apologized and took it off. When it was my turn to make a closing argument after the short trial, the judge said, “Summation, lieutenant?”
The charge was dismissed. I did not think my argument was that great. My confidence was OK, though a bit rattled. Was success aided by my ignorance, as Twain suggested? Or maybe the judge just liked Columbo? Something persuaded him.
I was not as successful in another trial where I had to argue an important point of evidence admissibility, and the lunch hour was fast approaching. I thought I could do it quickly and said to the judge, quoting Shakespeare, “I’ll be quick. ‘Brevity is the soul of wit.’”
The judge responded, quoting French humorist Rabelais, “OK sir, but remember: ‘An empty belly has no ears.’”
To this day, I regret going with Shakespeare over Rabelais. My ignorance there did not achieve success.
And would you believe candor and honesty can sometimes be a turnoff? Whenever I would interview clients in personal injury cases, they would ask me, “How long will this case take?” (This question followed: “How much will I get?” Followed by the terser and crisper, “How much will you get?”)
Given that it’s no secret these cases can take years to resolve, I used to point to a tall old maple tree outside my suburban two-story office and say something like, “Before this case is over, those leaves will change colors then fall off, then the branches will be snow-covered, and then the leaves will grow back. This cycle will happen a few times.”
Not long after this spiel regarding a potentially lucrative case, one of my clients bolted, switching his file to a downtown high-rise-office lawyer. I asked my successor if the client had a problem with me. He told me I had left the client with the impression his case would take forever to resolve. The client especially did not like my story about the tree.
I found this sentiment a bit upsetting. It was the truth, yet the client was annoyed with me. At least he did not file a disciplinary complaint with the Law Society of Ontario, alleging something like, “My lawyer is callous and cold-blooded. He compared my case to a pile of leaves.”
And so what does it take to persuade successfully? We all know about methods, such as not overreaching, keeping it simple, and using stories and analogies. All true, though in my aforementioned case, I struck out with the analogy of the tree.
We must realize we are constantly being judged by what we say or do or, at times contrariwise; what we do not say or do.
Aristotle said, “Wisdom is the reward you get for a lifetime of listening when you would rather have talked.” No doubt he meant listening and observing.
But at the end of the day, does it not all come down to having a sense of the human element?
Did I persuade you?
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue to pursue his humor writing and speaking passions. His just-launched book is Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging. For more information, visit MarcelsHumour.com and follow him at @MarcelsHumour on Twitter.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.