Tuesday, April 30, 2013

There's a reason you have two ears and only one mouth

When people ask my nine-year-old daughter what she wants to do when she grows up, she tells them she wants to be a lawyer like her dad (I've still got plenty of time to discourage that course of action). Then my wife chimes in that she really likes to argue and everyone smiles and nods their heads.

As anyone who has ever practiced law will tell you, very little of a lawyer's time is spent "arguing." In fact, we do a lot more sitting around listening to our clients that we do arguing.

I was reminded of this when I saw Scott Greenfield's post on Saturday about the talkative contractor he was looking to hire to repair his house after Hurricane Sandy.

Before arguing a motion to the judge there are hours of prep time spend reviewing the case file, researching the current state of the law, drafting the motion and anticipating your opponent's arguments. And sometimes the argument is limited to the judge asking what you want and why and then listening to the prosecutor state why the court should deny relief. Now you've got one last chance to impress the court.

Before sitting down to cross-examine the state's main witness you spend hours pouring over offense reports, witness statements, photographs as well as material obtained through discovery and snooping around. And then, invariably, the witness goes down a path you hadn't anticipated and your entire outline gets tossed out the window. If you're going to be effective you better be listening.

Contrary to what many people think, cross-examination isn't about arguing with the witness. It's about you testifying for your client through the person on the witness stand. It's as much about what you don't ask as what you do ask. It's about weaving together disparate threads of a story you can tell to the jury at the end of the day.

And, while we're here, don't even think of arguing during jury selection. As my esteemed colleague Mark Bennett has pointed out countless times in his blog and in his presentations, the secret of jury selection is listening. If you want to know what someone is thinking, ask them and listen to their answer.

So, if you think Junior will make a great lawyer one day because he likes to argue until he's blue in the face - think again. He might be better suited to talk radio or Fox News. If you want to be a good lawyer, you need to shut up and listen. You just might learn something.

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