Politics aside, the candidacy and presidency of Donald Trump has given litigators the opportunity to observe someone with a unique style and skill set achieve success in a new field through an uncommon path. As we all know, one of the most important skills of a litigator is to always keep learning and to keep an eye out for lessons where you find them. So, in a change of format, I’m devoting this week’s column to reflecting on some of the lessons of advocacy that I’ve learned from, or at least had reinforced by, Donald Trump.
DON’T APOLOGIZE FOR BEING AN ADVOCATE
I’ve probably now read hundreds of variations of the cliché that Donald Trump’s supporters take him “seriously but not literally,” while his opponents take him “literally but not seriously.” This is usually deployed to portray Trump as an iconoclast politician, ignoring all the usual rules, but that’s not quite right. More than 30 years ago, Mario Cuomo — as establishment a politician as you’ll find — loved to repeat his dictum that while politicians must govern in prose, they campaign in poetry. And the stereotype of the lying politicians dates back at least to Cicero. Trump is really just more blatant at — or worse at hiding — something that all politicians do.
The New Way Litigators Handle Depositions Applies AI Every Step Of The Way
Depositions by Filevine help with scheduling, tracking goals, and trial prep.
In that context, chastising politicians for lying is the same category error as taking a lawyer’s arguments as his personal views. A politician’s job isn’t, like a reporter, to stand up and state perfectly accurate truths; it’s to get elected and get stuff done. And given that we’ve been collectively assuming that politicians constantly lie for centuries, it’s even a bit disingenuous to act like anyone’s being misled. It’s like being angry when a friend told you they had fun at your dinner party, but you secretly suspect they were miserable.
Litigators, of course, operate under a similar, but clearer, principle. Reasonable minds may still wish their politicians to, despite precedent, state only impartial facts, or may decry that there’s no clear norm of what politicians may or may not say. But litigators operate under explicit rules in their advocacy: They cannot lie, but they are fully expected to present the most favorable possible arguments and characterization on behalf of their client.
Intellectually, all this is obvious and I’ve known it for years. But at some point during the Trump campaign, I realized that there was sometimes a small, nagging voice in my head saying that there was something dishonest about advocating for a position without disclosing every bad fact or admitting that the other side has its share of good points.
Reflecting during the Trump campaign, I was able to fully accept that this nagging voice was foolish. Not only is impartiality not the job, but pulling punches makes things worse for everyone except your adversary. A judge wants to reach the right decision and comes in expecting each side to make the best arguments it can. Sandbagging or throwing a case out of some moral duty would not only harm the client, it would also create more work for the judge and his clerks and create bad law.
Keeping Law School Accessible When Federal Loans Fall Short
As federal borrowing caps tighten financing options for law students, one organization is stepping in to negotiate the terms they can't secure alone.
READ WHAT PEOPLE WRITE ABOUT YOU
One of my favorite Trump stories, from back when he was just a colorful New York tabloid figure, was his habit of sending reporters angry personalized notes. Back in the day, Trump would supposedly make a point not only of reading all press coverage of him, but would actively engage with it. He’d have his assistant give him hard copies of any article about him, write detailed commentary in Sharpie on the article, and then have it mailed to the author.
Trump perhaps took this to an unhealthy extreme, but it is important to develop a sense of how you’re viewed by your audience. We’re all preceded by our reputations, whether it’s a judge who remembers you or a juror who has an existing view of your client. The first step in addressing any preconception is doing your homework and knowing what it is.
ALWAYS READ THE ROOM
Even after you do prepare, it’s crucial to keep an eye on your audience and be able to adapt. Trump is known for his ability to successfully extemporize for hours on end at rallies, carefully reading his audience and taking his speech in whatever direction will achieve the desired reaction.
So too is it crucial for litigators to properly read their room. We’ve all been in court with the adversary who barrels on, heedless of a judge whose facial expression makes clear they’re not following the argument and thinks the lawyer is an idiot.
DON’T BE AFRAID TO TAKE CONTROL OF YOUR SPACE
It’s also important to properly organize and take control of your personal space. Trump has occasionally been mocked for his habit of moving around objects on the table in front of him before an interview or meeting.
Obviously, rearranging your table isn’t actually that unusual, and I suspect this “quirk” is attributable to Trump’s weird mannerisms making the rearranging look particularly odd. But you shouldn’t be afraid to take control of your space and put things where you want them. In addition to the practical benefits of having items in a place that is most convenient for you, it also causes you to mentally take ownership of the area.
MAINTAIN CONFIDENCE, ESPECIALLY WHEN SOMETHING UNEXPECTED HAPPENS
We’ve all been there. You make a point that you think’s going to slay the judge, but he raises something that you didn’t expect. Even Justice Robert Jackson used to famously say that, when he was Solicitor General, he’d make three oral arguments in every case: The argument he planned, which he found logical, coherent, and complete; the argument he actually made, which he felt was interrupted, incoherent, disjointed, and disappointing; and the argument he thought of after going to bed the night of the appearance, which seemed utterly devastating.
When things go in an unexpected direction, it’s easy to lose confidence, but that’s when you need to hold on to it most. Trump is a master of this. He conveys utter confidence at all times, even if he doesn’t seem to know much about what he’s talking about. And while he probably often takes it too far in substance, he rarely does in tone. You need to be honest if you don’t know something — lawyers tend to get called on inaccuracies and overreaching — but you don’t need to let that shake you. You don’t have to (and can’t) know everything at all times, and confidence in admitting that is often a vital skill.
KNOW YOUR STRENGTHS AND WEAKNESSES, AND PLAY TO YOUR STRENGTHS
Perhaps Trump’s greatest talent is his ability to fight battles on his own terms, seemingly through sheer force of will. It’s easy to read too much into Trump’s success in the general election — we’re all wired to assign inevitability to the winner even in a close contest — but one thing he unquestionably succeeded on was distinguishing himself in the Republican primary in a crowded field where he lacked any of the traditional predictors of success. Trump achieved this largely because his skill set was very different from the rest of the field and he played that advantage for everything he had.
Many heavily hyped and otherwise very successful politicians perform terribly once they run for national office and start regularly appearing on camera. This is because — similar to law or banking — what makes a successful politician up to their presidential run isn’t quite the same skill set that prepares them to handle the next level. Before reaching the national stage, politicians tend to slowly work their way up through smaller elections and party machinery for years, and the ones who distinguish themselves tend to be great at working a room of local grandees; soliciting donations; and generally making a good yet inoffensive one-on-one impression. As they gain prominence, they’ll gradually start doing more television appearances, but usually in a controlled environment and it’s a very small part of how they spend their time. The process does not optimize for ability to handle oneself on television, let alone be an engaging presence.
Trump, meanwhile, had spent more than a decade as a successful reality television star before running for president. He was, if nothing else, very comfortable on camera and had a finely honed sense of what drew in ratings. And, in a real sense, he leveraged that very specific skill into the presidency.
So too should you always strive to accurately assess your strengths and weaknesses, and whenever possible bend situations to where your strengths are most effective, and your weaknesses least prominent. We all have areas where, especially against a specific adversary, we are comparatively better or worse. You’re unlikely to press your luck as far as Donald Trump, but it can’t hurt to try.
Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is of counsel at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at [email protected].