How to perform at a higher level as litigation attorney
Why some are the best at what they do with less than a decade of experience
We call it the practice of law but very few people actually take the kind of deliberate practice required to become the best. If you’re just starting out, you should take comfort that of those who project confidence based on having years of experience really live in fear, because all those years of work hide mediocre performance.
Most lawyers don’t get to practice
One reason most lawyers are average is because they require practice but don’t get a chance to practice in a deliberate manner. Doctors do residencies and fellowships, and work ungodly hours in the course of this work, to gain exposure and case experience with real feedback — often in life and death situations. Lawyers don’t get that kind of training unless they deliberately seek a job that offers it or luck out on it on their own.
When we ask why some people are so good at what they do, we tend to chalk it up to talents and “gifts” without realizing that exposure and training form a big part of the equation. We also sometimes believe that once people learn how to do things a certain way, their brains are hard-wired, when in reality, adult brains can rewire and new neurons can grow. In reality, talent is really just a person who has had opportunities to grow, possessed the motivation to take those opportunities, and was willing to expend the effort to get better.
In short, it was deliberate practice that lead to improved performance.
So how does that apply to lawyers? In the simplest terms, lawyers that deliberately focus on an area of practice tend to have better performance in that area. That’s why prosecutors who are in court all the time tend to make better than average litigators by the simple fact that they have exposure to more trials and hearings. But exposure isn’t enough to be great.
Basic practice doesn’t cut it
Just working off exposure and short-term memory doesn’t help lawyers in the long run. Those attorneys that fall into these exposure based routines may be good at the 6 or 7 things they do on a regular basis because that’s what exists in short term memory. For lawyers tied to a desk, they may be great at phone calls and emails, maybe some memos, but the rest of their skills are going down the hole.
To get better, lawyers need friends who are willing to coach them. Willing to look past their embarrassing mistakes when they try new things. What they need is purposeful practice.
In the legal context, purposeful practice has specific well defined goals. If you’re trying to get better at voire dire, a specific goal might be to get responses on one question from 50 percent of the panel, then 75 percent, and eventually, get to 100 percent. Because in the context of voire dire, if you don’t talk to a juror, or hear from them, you’ll have to guess where they stand on issues important to your case.
As with speaking to more people in voire dire, you need to know why that goal is important. Breaking down the significance of goals can remind you what you’re focusing on getting better at. Because voire dire is limited in time, lawyers need to practice getting efficient in prioritizing topics and getting answers from panel members quickly, while appearing natural and conversational. That is, in essence, a unique conversational skill that can also be honed in the context of networking events, where you may need to talk to people briefly and meet someone else. Identifying specific goals for specific tasks, and breaking those goals down, can then help you learn about outside opportunities to practice the subskills required.
However, those lawyers with 30 years of experience who just don’t seem that good are the people that engage in practice without a purpose. Sure, they might appear confident before a jury panel, but they are not eliciting the information they need in a timely manner. They likely think voire dire is simply a time to make a good impression, and that the panel composition doesn’t matter. Or they’ve fallen into a comfortable routine and are not willing to adapt.
Practice means getting uncomfortable
In all professions, there are obstacles and barriers that continually appear in your practice. There are times where you can choose to default to what everyone does to handle the problem, or motivate yourself to try someone a little different. Each time you try something new, it may take more time, but the motivation you build to take on the new challenge can help you address more difficult questions posed later on. In federal practice, for examine, lawyers tend to limit themselves to their local practice community to find go-bys or sample pleadings for their cases. Better lawyers will go beyond their local area and look to other jurisdictions and review those attorneys pleadings and filings. While the caselaw is different, you often can find new arguments and authorities that can make your pleadings more effective. Most lawyers don’t have the time to perform this kind of research, but after doing this a while, you inadvertently can build a network with lawyers in other jurisdiction if you take the time to call them and ask them about their pleadings. The legal profession can be isolating but lawyers like talking about their work product, and there’s no need to view everyone as a competitor, especially those in other states who may never interact with your prospective client pool.
Once you set specific goals, such as talking to 75 percent of the panel in a voire dire, you need to pay close attention to every detail of the performance. For example, after performing your first jury selection, and you either fall below, or exceed your threshold, you’ll want to know what factors lead to that outcome. For example, did you skip certain questions, or did you find certain questions drew a more talkative panel? You will compare the post-performance analysis over multiple voire dire jury panel selections in sort of a scientific method examination. If you setup your control and variable correctly, you’ll start to learn what your strengths are. It could be that you’re especially good at starting a question and getting panel members to feed off each others answers to get them talking. Or it might have been a scaled question that you were able to get people to commit a specific answer quickly.
Practice requires clear goals and changing up the context
Naturally, this level of focus and introspection is tiring. One of the ways to avoid fatigue is to continue defining clearer goals and having shorter sessions to measure those goals. That’s why, if you’re trying to become a better litigator, you focus on a specific skill. For lawyers, however, their skills require an audience and where are you going to get those people? Litigation, as it turns out, has a lot in common with story telling. Organizing a case is, in some ways, similar to putting on a movie or theatrical production. One lazy suggestion is to consider auditioning in a local community theatre production. If that’s too ambitious, you may consider story telling, and using your friends and family as the audience. It’s not rehashing your case — rather — try telling a story from your life that people invite you to tell. If you’re a couple, you may be asked how you met. If you’re a parent, you may be asked about something related to your children. These are storytelling opportunities which are important for lawyers in court. For those that draft pleadings, its even easier because you can convert these stories into journal entries for later distribution.
In essence, what professionals do is combine their technical training with art. The best way to get the underlying mental skills to do this is by creating art, because it works those same muscles. While a painting class isn’t exactly the same as legal work, it does require understanding how colors, lighting, and perspective are interpreted into creating a painting. The challenge of painting a picture from a blank canvas provides the metaphor for creating a legal narrative from a jumble of documents.
What if practice is boring? One thing people need to avoid is confusing motivation with willpower. There are reasons to keep going and reasons to stop. By creating structured practice, you will find fixed times of the day to create a habit. It could be that every morning you spend 30 minutes visualizing and taking notes of what questions and what format your jury selection will take. You can do that for all your litigation files and just that exercise along will make you better than people that think of jury selection the weeks before trial, because you will have thought about it each workday.
Sleep is also important. I won’t belabor this point, but good sleep, exercise, and diet will provide you the physical and mental state to practice well.
Practice requires visualizing your success
When you’re practicing, you have to believe you can succeed. It’s easy to say, but just like someone doing a karate chop on a piece of wood, you have to believe that your hand will break the board — and the only way to break the board is by striking all the way through. If you are practicing your skill, it needs to have a concrete goal. If you’re learning to draft better motions, your measure is not whether the motion is granted, but whether your pleading is effective and efficiently drafted. If you’re trying to get more efficient in your briefs, you may start with giving yourself 4 hours to complete research, but work towards a goal of doing the work in 2 hours. That type of efficiency can be measured, and the techniques you would be practicing could range from getting deeper networks with colleagues that can provide you sample pleadings, to getting better with Westlaw/LexisNexis so your research terms and databases are more fruitful. By setting incremental goals, you will believe you can reach them, and you will track your progress better.
Picking your area of expertise and guiding others on your journey
All that practice has to lead to something. In terms of becoming an expert, you need to select a field to which you can contribute and demonstrate mastery of what is known. You cannot just imitate the leaders — you can to find a way to surpass them. It is assumed you will try to copy the leaders — read their pleadings, follow their transcripts, and chat them up and rely on them as mentors. But you will learn a lot by becoming a teacher to a new generation. By teaching, you will be forced to take what you have learned and make your expertise digestible in steps, providing repetition, and feedback to a new generation of practitioners. Teaching could be teaching at a law school, or simply signing up to do a continuing legal education course for a bar association, or volunteering to be a mentor to young lawyers through that same professional community. This also will feed your motivation to be the best because you will find satisfaction in giving someone else the means to be the best.
Be careful about wasting time in “trainings” and continuing education
Many people will attend conferences and trainings focused on your practice area, and fail to develop skills. Forging skills through practice is less convenient, and more experience. Mass presentations are cheaper, but less interactive, and ultimately less effective. However, you can augment the failures of continuing legal education by building your own practice group with peers.
The critical features of an effective training exercise allow you to role play through the situation, have a discussion group to gain feedback and offer compliments and criticisms, have some problem solving feature, and some other forms of hands on exercises. While it is difficult to get training on a complex problem, you can develop lower level skills that can later be put together to solve your complex problem. This requires you to be able to identify highly skilled coaches for your group.
Just like you can only go so far in physical fitness by imitating a group class instructor without knowing why you’re doing it, you too need to gain some one on one time with the person you’re trying to emulate. This helps you challenge your mental blocks and gain feedback as to why you’re not moving forward. You need progressive teachers as part of your practice. Perhaps you may start with your peers to round out your foundational knowledge, but you need to move up the ladder as you master basic skills. To gain an introduction to master level practitioners, you need to study their work. Appellate cases and briefings, for example, give you an insight into someone’s finished work product. Just reading those papers won’t help unless you’re focused on trying to understand why you’re doing it. For example, if you’re trying to hone a niche as an excellent intoxicated driving criminal defense attorney, you probably need to start with reviewing court transcripts from motion to suppress evidence matters, where a lot of prosecution evidence gets thrown out for procedural reasons. If you start with a goal of honing your fourth amendment constitutional law skills, you can then become a sub-expert in this field of practice and grow from there.
In highly developed fields like the law, the level of performance required to stand out is great. You also need someone to help you to push you to the next level. That could be a partner at your firm or a friendly competitor elsewhere. But regardless, you need an effective training technique to be part of your workweek, and you need opportunities to practice at maximal effort. Training at max effort usually means going to try in the context of litigation, but it can also be working at max effort for a specific pre-trial hearing or pleading. By setting goals to become excellent at specific parts of your practice, you can then create a system for feedback, modification, and self-monitoring. Trying to become good at too many things at once will lead to exhaustion and failure. But become the best attorney at excluding breath test evidence in driving while intoxicated cases is a measurable goal because the knowledge and skills required are somewhat limited in scope.
Once you attain that expertise, the challenge becomes proving how you perform reliably better than others. It’s often difficult to distinguish yourself because people use biases including education background, experience level, and other factors to gauge how good you are at something. Even if you were to claim you spend 10,000 hours on a topic as suggest by Malcolm Gladwell, you’re really just halfway there because a high level of performance in a specific area is driven by your goal, and every practice method you has to address your blindspots.
To get to be the best, you need to do a self-inventory during and after completing susbstantive knowledge work. You need to notice what parts of the task were more challenging than others. Map out your plan of action for later review to determine if it was an efficient course. Document your rationalizations for your choices. Admit mistakes and see why you made them. Consider your alternatives.
Many times offices create guidelines and standard operating procedures. These create a comfort zone and are not designed to develop new skills in professionals because they exist to make people interchangeable. The SOP won’t expand your abilities, so whatever you’re trying to get better at has to fall outside the SOP. Where there is little guidance — these are the areas you need to abandon business as usual and work with a mindset of growth.
Where you can grow is where you are least stable and least comfortable. By continuing to make small changes you can get lasting long term consequences. Get out of the “good enough” mindset and recognize and remember the patterns that get people into this trap.
To become a domain specific expert in the law, you need to have a long list of numbers next to your name, not vague descriptions. The more you can quantify your knowledge work, the better. The best in your field are able to predict future events because they can envision more possible outcomes. That’s something attorneys are called upon to do with their cases. One way to develop that kind of prediction is by reading case filings by attorneys before reading the courts opinion, and by doing that for most filings before that judge, you can determine the most persuasive arguments for that court. That, in some way, makes you a domain expert in relation to that judge without having to clerk with the court or appear in front of the judge.
While it’s hard to become an expert without having a mental representation of what that level of success looks like, and in a way, this is a catch 22 because the only way to envision success is to be successful, you can develop training techniques to gain success in smaller practice goals. Regardless, nothing stated here is revolutionary. It takes more time to get better, and if you can’t do it on your employer’s clock, you’ll need to find a way to do it on your own.