I knew a pilot once. He explained to me
a couple of maxims of that profession that ring true. First, he told me that it
is important not to run out “of airspeed, altitude and ideas” simultaneously.
Second, he told me that being a pilot involves “hours of boredom,
punctuated by moments of stark terror.” These and many other pilot quotes
and cliches are memorialized on the internet.
Is the practice of law really any
different?
The case that walks in the door is
rarely the case you take to trial. Each case is a journey, and along the way
things change. In some ways it is similar to a plane trip; in that it is
sometimes hard to see where you are going, and you have to put your faith in
the professionals that can see the whole horizon. In some ways it is similar to
a car trip; in that you may make wrong turns, it may take longer than expected,
and you have multiple opportunities to get out an walk away.
Litigation can be months of boredom,
punctuated by days of stark terror. This is particularly true for young
lawyers. Examples might include (1) the day you realize that the deadline for
amending the pretrial, or to file this complaint or answer, was last Friday,
(2) the day your expert admits on cross that everything your opponent argues
makes perfect sense, (3) the day the appellate court issues new authority,
which kills your case, and trial is tomorrow or next week. The list
is virtually boundless, and we have all had those days.
It is challenges, these “days of stark
terror,” I would suggest, that lead back to the test-pilot maxim, that it is
important not to run out “of airspeed, altitude and ideas” simultaneously.
There are cases that cannot be won, clients that cannot be pleased, and
mistakes that cannot be fixed. Fortunately, these are the minority.
In the hit movie Finding Nemo, Dory
presses through life with her motto “just keep swimming.” She has no clue where
she is going or why, but at least she is as consistent as she is persistent.
Unfortunately, she will never know when the journey ends as she has no idea
where she is going. Henry David Thoreau said “It is not enough to be
industrious; so are the ants. What are you industrious about?” Likewise, it is
not enough to just keep swimming, where are you swimming to? Airspeed alone is
not enough, in flight or litigation.
Altitude is a luxury. With altitude
comes the flexibility to change directions, recover from mistakes, and maintain
the progress of your journey. A pilot flies along at 30,000 feet. A
mechanical failure with an engine or a wing might come at any time. In the 2012
hit Flight, our hero Whip Whitacker (sidenote, pilots always get the great
nicknames) encounters a catastrophic failure with his plane. Had this occurred
at 1,000 feet, the movie would have been much shorter.
However, it occurred at cruising
altitude and our hero traded altitude for time, as he dealt with the problem.
Because he was at cruising altitude when catastrophe struck, he had time to
respond as he lost altitude. The lesson for lawyers? Get the case to altitude
as quickly as possible. Don’t put off until next month thinking “this is a new
case and I have time.” If you get the case moving, despite how far away trial
may seem at the beginning, you will be ahead, that is have "altitude"
when disaster strikes, and you can trade that for time to deal with the
problem.
Imagination and ideas are critical to
successfully trying a case. Donatella Versace said “creativity comes
from a conflict of ideas.” This is illustrated when two or more really good
attorneys’ skills converge in one case. They try and test one another. Their
skills are challenged and their intellect is honed. There is no greater day for
a trial judge than a trial with two imaginative and focused advocates,
each of whom is prepared and zealous. They conflict, but this feeds their
creativity; it is inspiring to witness.
One key to litigation is to have ideas
in the back of your head, ready for the unexpected, the moment of
"terror." This becomes easier as one gains experience. Despite it
being easier perhaps for the more experienced, any attorney should have a
series of “plan b” ideas. Try to think these through early in your case. A
great source for such ideas can be discussing your case with another attorney,
be it a partner, an associate or just a friend. A partner of mine once had
a coffee cup that said “old age and treachery will overcome youth and skill.”
If this is true, it is only because the old age brought a wealth of experience,
scars, and therefore ideas that could be readily referenced and engaged. If you
lack the scars personally, find a mentor with whom you can discuss your
case.
So from this maxim we can remind
ourselves that hard work (airspeed) is critical, but it must be focused. It is
insufficient to just "keep swimming." We recognize that
altitude is our friend. Having that altitude when terror strikes affords us
time to react. A side note, as you approach landing (trial), and altitude is
naturally decreasing, you will have less time for reaction. Try to avoid being
surprised when you are close to your destination, trial. Finally, ideas need to
be readily at hand. Experience should make that easier, but no attorney can
afford to ignore the “what ifs” of litigation.
Focus on the maxim of “of airspeed,
altitude and ideas,” and both the frequency and duration of your days “of
terror” will be decreased.
Another side-note. Back to our
"journey" analogy. It is important to know when to park the car and
walk away, that is to settle the case and end the journey. It may be tough,
when you have so much invested, but it is sometimes still the best thing to do.
We may need a mediator or other outside perspective to help us understand when
that time has come. Just another reason to seek out that perspective from a
mentor or partner.
