I decided to call this blog site “The Defense Can Now Rest.” Of course, people. and attorneys, in particular, will want to know exactly what that means. F. Lee Bailey wrote a famous book titled “The Defense Never Rests.” Anybody who may be familiar with the American Bar Association Model Code of Professional Responsibility knows that we are ethically required to zealously represent our client. That does not suggest that we should get much rest.
Perhaps, you think that I am talking about artificial intelligence. Yes. Artificial intelligence is already here to help gather information for lawyers, and that will certainly make it easier for lawyers to do what they do best – represent their clients. And, perhaps, it will allow lawyers to finally get some rest.
But, this is not what I am talking about. And, I am not talking about lawyers who draft contracts, deal with wills and estates, or are busy trying to grapple with the tax code. This blog deals with those lawyers who are litigators and negotiators. Artificial intelligence can help gather the information for the litigator, but the litigator will incorporate a style, the experience they have had with the profession, and the best lawyers look at what they do as being an art form. That is what makes them effective. And while this is an art form, a lawyer cannot be effective is the art part is constantly being created anew. These lawyers possess the art of persuasion which requires consistency. The moves on the chess board may change depending on an opponent’s move, but the effective lawyer will know how to respond, almost as if they have developed their own artificial intelligence.
In 1996 and 1997, Gary Kasparov was the world champion in chess at the time, and played against IBM’s Deep Blue in two separate matches. Kasparov won the first, and the Computer won the second. The Computer is able to analyze thousands of moves, and if the legal practice was merely moving chess pieces on a board, perhaps the computer can replace lawyers.
However, the art of persuasion is about human interaction. I want to make you feel something. I want to make you believe in something. I want you to like me. I want you to listen to me. I want you to think about what I have said. I want you to agree with me.
Too many lawyers are too busy just figuring out what the information is and then, convey the information in a way that someone can understand. “Member of the jury, it is our position” is a line that does not ask the jury or the person you are dealing with to come to any conclusion. They are the “news reporter”, and that is certainly something that perhaps, artificial intelligence may even be better at doing. If that is all we do, we then may not even need lawyers anymore.
This is all about the the tools we use with the art of persuasion. So you can understand what I mean, I will tell you a story, just to provide one example. I was overseeing an architect malpractice case that went to mediation. As with many of these cases, opposing parties held diametrically opposite views of the case.
Prior to mediation, I instructed defense counsel to request an opening statement, and advise the mediator that he was going to present a PowerPoint presentation on the defense of our case.
Defense counsel, who was obviously not thrilled with the task of putting together a lengthy PowerPoint for the mediation, said to me “Steve. No matter how fancy a PowerPoint I can put together, we will not be able to convince the plaintiffs and their counsel of our position.”
I turned to our defense counsel and told him, “I do not expect you to convince the other side to accept the correctness of our position. I do expect you to convince the other side that I am convinced of the correctness of our position.”
This is what the “art of persuasion” is all about. This is the best part about what being a lawyer is all about. This is why lawyers will not get replaced by computers. When you find out that you have developed this art form, you can then start to mentally rest. That is what this blog tries to do. It is designed to make you notice the tools you have at your disposal, and develop those tools in order for you to get that much needed rest.
The best analogy to make this point is a story I tell that goes back to my high school days. I spent summers in the Bronx going to Shorehaven Beach Club. When we got there in the morning, we typically played raquetball in the morning, and waited to go into the pool in the afternoon when the water was a bit warmer.
I stunk at raquetball. It was not because I was not in good shape. In fact, the person I played was in fact completely out of shape, and he had a nickname that gave it away. He was called “the Tuchas” because of his very large tuchas.
While I was able to run back and forth on the Court, the Tuchas stayed in one place. Being the Tuchas, it was more difficult to quickly move the tuchas. However, despite the difference in our fitness levels, the Tuchas always won. The reason he always won was because he knew exactly where to place the ball, and it was always where I was not, or was hit in a way that I would have to run full strength just to reach the ball.
I didn’t have a chance. Yet, the Tuchas never broke a sweat. Keep reading, gather all the tools and pointers, and from the art of litigation and persuasion. you too can be known as “The Tuchas”! Time to stop spinning the wheels and going nowhere. And yes, when you are done, you can also say “the Defense can now rest.”
