How Niccolo Machiavelli Can Help Us Be Better Litigators

1x1.trans How Niccolo Machiavelli Can Help Us Be Better LitigatorsSome of my most popular posts have discussed Sun Tsu’s The Art of War as it relates to litigation and business in general. Another favorite of mine in that same vein is The Prince, written by Niccolo Machiavelli exactly five-hundred years ago this year. Considering my opinion that litigation is a form of warfare, the shrewd Florentine philosopher and diplomat, among other things, has a lot to offer. Consider this passage from The Prince:

From this arises the question whether it is better to be loved rather than feared, or feared rather than loved. It might perhaps be answered that we should wish to be both: but since love and fear can hardly exist together, if we must choose between them, it is far safer to be feared than loved.

As originally discussed by Machiavelli, this question was considered in the context of a ruler and his subjects. Pondering the application of the concept to the relationship between managers/CEOs/managing partners and workers is the obvious way one might discuss the idea. However, the concept can be extended beyond the ruler/subject relationship to the interplay between attorneys in civil litgation. In other words, on the litigation battlefield, is it better to be loved or feared by opposing counsel? Which one serves the end goal more effectively? These days, lawyers seem to be conditioned as early as law school to conduct themselves in a civil and cooperative manner when dealing with opposing counsel, but is this the most effective approach? I submit that it is not; at least not always.

Let me be clear that this statement is not meant to advocate any breaking, or even bending of the rules of civil procedure or the rules of professional conduct. In fact, wholesale adoption of Machiavellianism as an attorney would clearly run afoul of the rules of professional conduct rather quickly. Neither is it meant to encourage hostility for hostility’s sake. However, there must be a balance between civility and zealous advocacy, and the two do not always mix. Excessive civility cannot be allowed to work to the detriment of the client. While this may cause one to be “loved” among colleages and even opposing counsel, on the litigation battlefield I believe fear is far more valuable if a choice must be made. What do you think? Leave a comment if you have an opinion.

Can running make you a better lawyer?

1x1.trans Can running make you a better lawyer? Ultrarunning is defined as running at distances greater than marathon distance (26.2 miles). Lately I have had a lot of questions about ultrarunning on Twitter and it has had me thinking about its benefits. I have previously posted about why I love ultrarunning, but last weekend I had a more practical thought. Considering the time commitment involved in training for 100 mile races, is it worth it? Does it help me to be a better lawyer? As I passed mile 20 on the weekend training run a few days ago, I came to the conclusion that it most certainly does.

My particular area of practice is civil litigation with an emphasis in products liability and catastrophic injury cases. These cases are almost always a war of attrition requiring large numbers of man-hours. The trials are long, almost always more than two weeks and often considerably longer. The opposition is well funded and well staffed with as many as three to four times the number of lawyers and staff working a particular case as compared to your average plaintiff law firm. Prevailing in these circumstances requires determination, focus, perseverance, and a single-minded willingness to do whatever it takes to achieve an objective. Long hours, sleep deprivation and high stress levels are the norm. On a side note, this is one of the reasons I find that military veterans are well suited to litigation.

In ultrarunning, finishing is everything. For me personally, as well as a majority of the athletes that compete in ultra races, the only time that matters is the traditional 30 hour time limit to complete a 100 mile race. Crossing the finish line in less than 30 hours is the only thing that matters. Never surrender is the mantra of ultra running and doubt is the enemy. Ultrarunning brings with it an increased tolerance for suffering and discomfort that I have never experienced at the same level with any other activity. At least in my area of practice, this simply has to make me a better lawyer. Focus on the goal, don’t sweat the little stuff, outwork the opposition and push forward one step at a time until you acheive the desired result for your client. Finish, or die trying is the mindset that I need to start a race with to have the mental and physical strength to accomplish my goal of crossing the finish line. This attitude and focus translates well to civil litigation. I would not say that one necessarily has to run 100 mile races to enjoy this benefit, you just need to consistently challenge yourself and push your limits. The good news is that next time your partner or spouse gives you a hard time about that three hour run, you can tell them you have no choice. You have to keep yourself in peak condition…for trial.

Holy $%*?, I Might Just Be A Psychopath

At least it seems I may have some of the qualities of a psychopath. The good news is that does not mean that I am destined to be the next Jeffrey Dalmer. In fact, it turns out there are many of us living successful lives, inside the bounds of the law, who have some of the qualities of psychopathy. Functional psychopaths. Interesting? If you think so, I highly recommend reading Kevin Dutton’s latest book, The Wisdom of Psychopaths: What Saints, Spies and Serial Killers Can Teach Us About Success.

What exactly is psychopathy? The American Heritage Dictionary defines psychopathy as “a personality disorder that has been variously characterized by shallow emotions (including reduced fear, a lack of empathy, coldheartedness, egocentricity, superficial charm, manipulativeness, irresponsibility, impulsivity, criminality, antisocial behavior, a lack of remorse, and a parasitic lifestyle.” When many or all of these traits come together in one individual, be afraid, be very afraid. Thankfully, the convergence of enough of these traits to create a Ted Bundy or John Wayne Gacy is relatively rare.

In his fascinating book, Dutton weaves just enough anecdotal information into the clinical discussion of these traits, and the types of individuals that have some or all of them, to make the book an entertaining and educational read, particularly if you have an interest in psychology. If you are an executive or attorney and you have not taken an interest in psychology, you should. An understanding of why people make the decisions they make is invaluable in the courtroom and the boardroom. Acccording to Dutton, CEO’s and lawyers are the number one and two proofessions that test positively for psychopathic traits. There may be more psychopaths among us than we know.

Think of how some of the traits must be present in some of the most admired members of society. Read Dutton’s book and discover the close link between psychopathy and heroism. The hero who runs into a burning building, the pilot that remains cool in the face of an impending plane crash, the bomb disposal experts with heartbeats that actually slow down when disarming a bomb that could explode at any second. All of these individuals have some of the characteristics of psychopathy, as Dutton creatively explains throughout the book.

Read at your own peril because  you just might learn some things about yourself. I have spent quite a lot of time wondering why I behave certain ways under pressure in many professional, as well as personal situations. In fact, I have often surmised that there must be something wrong with me for not exhibiting the intense reactions to impending tragedy and high risk that others around me exhibit. It turns out, I may just be wired that way when it comes to risk. While this is not the most desirable quality when being berated by my wife for “not caring,” it has served me well in the high risk area of the law where I have chosen to practice. An area where the jury’s verdict can make the difference between enormous rewards and equally enormous losses.

While this may sound like a “bad” character trait, think about it. Have you ever found yourself saying something like this: “I don’t waste time worrying about things I can’t control”? If you have, you may very well share some qualities with psychopaths. If you read Dutton’s book, he will also identify some tests you can find for free to see how much of a psychopath you really are. Fortunately, I failed the tests for true psychopathy. While I may have some useful psychopathic traits, I am not a true psychopath so you can all stop thinking about unfriending and unfollowing me now and breathe a sigh of relief.

A Conservative’s Perspective on The Newtown Tragedy and Guns in Schools

Despite the obviously left-leaning nature of the Lawyerology blog and its principal writer, we are open to the opinions of our conservative counterparts. In fact, at times we even agree with them. The following is a response to my post following the Newtown tragedy. Go here to view the original post. Considering the thought and time dedicated to commenting so thoroughly, it seems appropriate that Ed Guitierrez’s comment be published as a guest post.

From Ed Guitierrez:

On this most painful of subjects, I would like to offer my point of view.

Call me a Reaganaut, because I am one. I am not a Reagan Democrat. I am a proud conservative, and I like guns, and the ability to have them. And while I agree with Mr. Sullivan and his comments, I am hard-pressed to see any end all be all to this issue. Horrific circumstances continue to arise randomly. There is no reason to it.

But what I do see is that budget cuts are everywhere when it comes to public education. So how is any school district going to be able to support an armed sentry for all of their schools.  Major metro areas with populations of over a million people will have big challenges meeting this idea for a long list of reasons.  I live in one of those types of areas. This is not to say that I don’t like the idea, because I really do like the idea. I do not want to be one of those parents who receives a horrible phone call.

San Diego is no stranger to horrific tragedy. We might be “America’s Finest City” but we are also a border town. Families enjoying a weekend outing have been gunned down in a crowded McDonald’s, kids have been kidnapped on the way to or from school. Even in the best of areas, kids have called their parents in a panic because a “delivery man” was banging down the front door demanding to be let in the house (knowing the kids where home alone). Yes, we may have it all, but we have it all if you know what I mean.

I live in the one of the most coveted public school districts in San Diego. So much so that it has a noticeable direct affect on property values. And because of our standards, let me share with you our approach, district wide, K-12, which covers several zip codes.

Hands on parenting, and, we don’t put up with ANY shit. You see, we regard education as a gateway to our children’s future success, not as a state funded baby sitting service so we can go to work. Not only are our schools automating, but parents fill out mountains of paperwork weeks before school starts. The #1 item, school conduct and expectations of parents.  Yes, parents are held responsible and accountable.  Working 40, 50, 60 hours a week does not exempt any parent. Parenting should not be a novelty.

In the 8 years my son has been in school, there have been only two altercations between two students. The result, quick investigation, followed by expulsion.  There is no second chance, or three strikes law. There is no “consultation” followed by three day suspension.  In fact, suspensions are rare and reserved for “grey line” issues. Kids are just expelled if they do no display proper citizenship that has become a chronic problem. Everything is well documented.

Parents who have a problem with this can threaten with legal, but they also signed documentation and acknowledgement of policies before school started.  Also, the embarrassment of being faced by other hands on parents is a deterrent. Besides, the prospect of having your convenient world, inconvenienced for several years is enough to keep parents in check.

It may sound harsh and off the subject, but really, it is the subject. If the mother in Conn. didn’t hide her son’s problem, the awful tragedy may have not happened. As well as the Columbine incident. Hands on Parenting is a key factor.

Also, the guns in school issue, is really such a minor issue. The more common, everyday issue or concern which is overlooked because school shootings are so tragic and horrific are sexual predators around school campuses, drugs, gangs, and the like.  So what do we do, for many of us, the Sheriff’s Department is our best friend.

As concerned parents, our Sheriff’s Department randomly patrols around our schools at various random times.  One or two squad cars, motorcycle police giving tickets to speeding parents, K9 patrol. It’s random, unpredictable, but visible. We appreciate it and it works. That also means showing appreciation by generously supporting their yearly fundraising efforts. After all, they protect and serve our community.

So what exactly is my definition of hands on parenting? Well, being involved with your kids school work, knowing their friends and their friends parents and socializing with them.  It is also, more importantly, being a part of the school.  Making sure teachers have help in the classrooms, that there are noon-duty aids to supervise recess. All volunteer work. Being a Hands on Parent in a high functioning school, only takes time. Really! It’s not money. Only time. Oh, you can make it expensive if you want and loose control in the process, but really time is what is takes. That’s it.

We know “of” or personally know every kid in both of my kids’ classes, and many of the parents as well. This is actually normal, and EXTREMELY rare for a major metro area like ours. Elementary classes typically have fifteen students. Junior high and high school classes have thirty to sixty students.  By the way, in my daughters elementary school, besides the PTA with six board members, we have three sub-committees. This is normal for us.  We don’t put up with shit, and we are concerned with state and federal API scores and how our schools rank to other schools locally and  nationwide.  A 4.0 GPA is not good enough, and trust me, by JR High/Middle School, the kids know that. Sure, there is some politics, but that is normal.  I will say, it is politics for the good of the students.  It is not social climbing, who vacationed where, the nosey “so what do you do for a living?” question, and other annoying, “so what, who cares” facts. Our small bubble is too busy for that kind of B.S. and “those” kind of people don’t last in our community or quickly change.

So how does all of this relate to the topic at hand? Guns in school? A solution? It could be as easy as this. Keep the kids focused, active, accountability for all, be involved, and let NOTHING slide.

Sincerely,

Ed Gutierrez

5 Things to Remember In The New Year

After many years of resolutions that fall by the wayside sometime around mid-March, I have stopped bothering with the typical lose weight, eat better, stop drinking, workout more resolutions that are inevitably doomed to failure. Instead, I remind myself this time every year about the things that are important to me and the ways I need to think to make sure they stay that way. A healthy mind generally makes for a healthy body and these are the things that make my mind healthy. With the right mindset, everything else will fall into place. Maybe some of these reminders will help others as well. It never hurts to try.

1.  Hug my children and tell them that I love them every day. In an increasingly complicated world, they need it. At the end of the day, I may need it even more.

2.  Be hopeful. Nothing good ever comes from negative thought. Be positive and good things will happen. Try to remember that there will be a brighter day and more often than not, the grand tragedy of today will seem far less tragic tomorrow.

3.  Be thankful. Remember, there is almost always someone who is a whole lot worse off than I am. I have my health. I have my family. I have a roof over my head. I never have to go to bed hungry. Thinking about these things can help get through the tough times and even bring a smile in the face of adversity.

4.  Believe in myself. We are all beautiful in our own ways. Remember that no matter what anyone says, words cannot hurt me. If I feel in my heart that I am doing the right thing, I will not be swayed by the petty criticisms of others.

5.  Stand up for myself and others. Nobody has the right to demean or bully me, or anyone else, no matter how powerful they are. Stand tall in the face of adversity. If failure comes, face it with dignity and strength and do not fear it. Nobody ever accomplished great things without failure. Never failing is not the key to success; it is never quitting that is the key.

Hopefully reflecting on some of these things will help others as well. Have a prosperous 2013 and remember the words of Benjamin Disraeli: “Nurture your mind with great thoughts, for you will never go any higher than you think.

HAPPY NEW YEAR