Litigators, Plaintiffs Firms

Reggie Bush v. Emmitt Smith: Valuing Legal Vision Above All Else

The development of good legal “vision” is becoming increasingly more difficult for young lawyers. Why not give them a hand?

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Reggie Bush is a phenomenal athlete. He’s physically gifted. He’s fast. He’s strong. And he can leap tall buildings in a single bound.

Bush was a high school football prodigy that went on to win the Heisman Trophy as a running back for USC. In 2006, he was drafted second overall by the New Orleans Saints. Fresh off the heels of Hurricane Katrina, New Orleans was desperate for something frivolous to be excited about. The drafting of the California superstar coupled with the signing of Drew Brees was just what the doctor ordered.

Upon entering the NFL, Bush showed glimpses of greatness but never really lived up to the expectations that accompanied his physical gifts. Early in his career, Bush seemed to struggle with the speed of the game. Commentators noted that before coming to the League, Bush was often the most talented athlete on the field. He could rely on his superior physical gifts to excel amongst high school or college players. But immersed among like talent in the NFL, a hole in Bush’s game was exposed. He lacked superstar “vision.”  As a result, Bush wasted a lot of time and energy running laterally from side to side, waiting for an opportunity to showcase his big play ability. Instead of consistently gaining positive yardage, he was often dropped for a loss behind the line of scrimmage.

Bush has bounced around from team to team since entering the League. He is a very wealthy man. But despite his physical gifts, he will never be included in a discussion of the NFL’s greatest running backs.

An NFL running back relies upon his speed, power, and agility to gain positive yardage. But those physical skills are virtually useless if the back lacks “vision.” Within the world of football, “vision” is often used to describe the split second decision-making skills players use to excel on the field. A running back uses his “vision” to determine whether more yards can be gained on a given play by running through the line of scrimmage or bouncing a run outside. “Vision” is not only about processing the information in front of the back but also about anticipating the obstacles that lie ahead. “Vision” allows the back to commit to a given course of action before a play fully develops with the confidence that space will emerge at exactly the right time to allow him to gain positive yardage.

Emmitt Smith is the NFL’s all time leading rusher. Before retiring in 2004, he won three Super Bowl titles with the Dallas Cowboys. But when drafted in 1990, Smith wasn’t even the Cowboys’ first choice. He was comparatively slow for a running back and the Cowboys had their sights set on Baylor linebacker, James Francis.

An unheralded scout named Walt Yaworsky fought hard for the Cowboys to take Smith over Francis. Yaworsky was adamant that Smith would one day be a superstar. Yaworsky, an old-school scout, reportedly advised Cowboys officials to disregard Smith’s glaringly slow 40-yard dash time because Smith had the best “vision” of any running back he had ever scouted. “He was unique because he wasn’t real tall,” Yaworsky noted. “I thought he was in Jimmy Brown’s class from the start. He just had this peripheral vision and he seemed to know exactly where his linemen were going to be without ever having to take a peek.” The Cowboys took Yaworsky’s advice and the rest is history.

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Much like the NFL, legal “vision” seems to be the great divider in our profession. Money can be made without it for sure. There are legions of Reggie Bushes among our ranks that make exceptionally great livings without great “vision.” Like Bush, savvy, self-promotion can often result in a narrative of greatness that does not necessarily align with actual production on the field. But true greatness on the legal playing field seems to hinge on great “vision.”

What is legal “vision?” Both the long term and split second decision-making skills that lawyers use to excel in a given case on behalf of their client. A lawyer uses her “vision” to choose between a number of potentially treacherous strategy options. “Vision” is not only about processing the information in front of the lawyer, but also about anticipating the obstacles that lie ahead. “Vision” allows the lawyer to commit to a given course of action before an event fully develops with the confidence that space will eventually emerge that allows her to gain positive yardage on behalf of her client. Most importantly, “vision” enables the lawyer to make substantive decisions and push forward on behalf of her client. The decision may result in being hit hard by our profession’s equivalent of a 6 foot, 6 inch, 350 lb linebacker or it may result in a long touchdown. But a lawyer with “vision” is capable of making the decision and proceeding forward rather than dancing around laterally like Reggie Bush.

Dr. Daniel Levitin, a neuroscientist, described the similar concept of “satisficing” and the importance of efficient decision making in his book “The Organized Mind.”

Every day, we are confronted with dozens of decisions, most of which we would characterize as insignificant or unimportant-whether to put on our left sock first or our right, whether to take the bus or the subway to work, what to eat, where to shop… Satisficing is one of the foundations of productive human behavior; it prevails when we don’t waste time on decisions that don’t matter, or more accurately, when we don’t waste time trying to find improvements that are not going to make a significant difference in our happiness or satisfaction.

Like the NFL running back faced with maneuvering through a landscape of giants dressed in spandex, we as lawyers are called upon to navigate through a minefield of distracting variables on any given case. Our ability to accurately identify the variables that actually matter and design a course of action that accounts for those variables, allows us to advance our clients’ goals forward. Lawyers that lack this skill, exert a lot of time and energy moving laterally rather than forward.

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If this type of decision-making was easy, Emmitt Smith would not be very special. In reality, like any other skill, legal “vision” must be practiced and refined with a certain degree of discipline and endurance. Lawyers today face an onslaught of information that competes for their attention around the clock. As explained by Dr. Levitin, our brains have a finite capacity for good decision-making and the explosion of information has made such decision-making even more taxing.

Neuroscientists have discovered that unproductivity and loss of drive can result from decision overload…It’s as though our brains are configured to make a certain number of decisions per day and once we reach that limit, we can’t make any more, regardless of how important they are. One of the most useful findings in recent neuroscience could be summed up as: The decision-making network in our brain doesn’t prioritize.

Our brains do have the ability to process the information we take in, but at a cost: We can have trouble separating the trivial from the important, and all this information processing makes us tired. Neurons are living cells with a metabolism; they need oxygen and glucose to survive and when they’ve been working hard, we experience fatigue. Every status update you read on Facebook, every tweet or text message you get from a friend, is competing for resources in your brain with important things…

The development of good legal “vision” is becoming increasingly more difficult for young lawyers. In addition to the explosion of information and our natural neurological limitations, our law schools continue to struggle with how to teach, evaluate, and reward competent decision-making. Law school issue-spotting competitions are great. But they are the equivalent of evaluating a running back based simply upon his ability to identify the players on the field. It’s not a very good indicator of the back’s ability to gain yardage amidst the chaos of a real game.

Upon graduating from law school, many young lawyers find themselves trapped in the purgatory of a task-centered practice. Research this issue. Write this memo. Take this deposition. These young lawyers move from task to task assigned by supervising partners but are not provided with an opportunity to practice using their own legal “vision” in pushing a case to conclusion. As a result, their growth as a professional is stymied. They never develop the confidence or competency associated with tough legal decision-making. While individual lawyers suffer the consequences of this reality, firms eventually suffer the consequences of their unwillingness to nurture and develop legal “vision” in their young talent as older lawyers retire and the need for such “vision” grows.

This week, 300 of the top NFL draft prospects will gather in Indianapolis for the annual scouting combine. They will perform a series of tasks for NFL scouts in hopes that their athletic prowess will convince a team to draft them in April. It’s kind of like the NFL’s version of on campus interviews.

This week, it’s worth taking a step back and reflecting on the lesson of Walt Yaworsky and Emmitt Smith. “Vision” is to be valued and cultivated above all else.

Jed Cain is a trial lawyer and partner with Herman, Herman, & Katz, LLC in New Orleans, Louisiana. Jed writes about family, the law, and Louisiana current events at Cain’s River. He can be reached by email at jcain@hhklawfirm.com.

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