In a recent Wall Street Journal column, Gerald Seib discussed the failings of conventional wisdom. “Group think” in Washington has led many astray. As an example, Seib points to Chicago Mayor Rahm Emanuel who predicted early in 2016 that Donald Trump would be the Republican candidate and win the presidential election, even calling the precise states that Democrats had thought in their conventional wisdom would vote for Hillary Clinton.
IMHO, I don’t think that group think aka conventional wisdom just resides in Washington, D.C. It is everywhere and permeates everything. Our profession is not immune.
What brought this to mind was Robert Ambrogli’s recent column on a new company, headquartered here in SoCal, called Gavelytics.
The premise of this startup is to be able to give lawyers (and thus, their clients) concrete information about how judges have ruled on various kinds of motions, how many times they’re been “170.6 ed” in California parlance, e.g. the subject of peremptory challenge, other indicia about how a particular judge might rule in a particular case, and whether a judge rules more often for plaintiff or defendant.
I looked at the website for the list of bench officers that they have so far. With over 500 judicial officers in Los Angeles County alone, the list is not complete, far from it, but according to the website FAQs, the list is growing every day.
What does this new product have to do with conventional wisdom? Statistics are one thing and may be helpful, but the human element of how a court may handle a particular case is quite another. Yes, I know I’m a dinosaur, but I think technology can only take you so far here.
How many times have you been in court and the judge has made it clear in colloquy between her and counsel and whether explicitly or otherwise, that she doesn’t like the theory of your case (bad), and may even not like you or your opposing counsel (uh-oh)?
“Papering a judge” has downsides, including but not limited to, assignment to a subsequent judge who is worse for your case (you only get one bite of the “papering the judge” apple) or be reassigned to a judge in a courtroom far away (the furthest courthouse is 70 miles away from downtown Los Angeles in the High Desert and getting “hometowned” can take on a whole new meaning even within the same county). Word about attorneys who paper judges travels fast, even in as large a county as Los Angeles, and the tactic is not well received.
The Gavelytics concept intrigues me, but I wonder if algorithms/statistics and the like take into account the human element that even bench officers display from time to time, the reality that almost every case turns on its facts, and whether using predictors such as these reinforce conventional wisdom or bust it open.
Seib’s column has four suggestions to refute conventional wisdom, which are worth considering for us as lawyers, whether we’re dinosaurs, millennials, or anyplace in between:
1. “Get out of your bubble.” Amen to that. Sometimes I think that we lawyers are on another planet, both in terms of how we regard the rest of the world (e.g. non-lawyers) and how we regard others in the profession who don’t have the same “pedigree.” We didn’t all go to the same law school, but we all have the same licenses to practice. We need to understand better real world people and their problems as well as each other.
2. “Build a system for hearing different views.” The key here is “hearing.” As a mediator, I am amazed at how often lawyers and their clients refuse to hear what someone else is saying, metaphorically clapping their hands over their ears. You don’t have to agree, but you need to hear and listen. How many times have you refused to listen to another point of view and lived to regret it, whether before litigation, or in the thick of it? I thought so. Stop interrupting and start hearing and listening.
3. “Be ready for some discomfort.” Seib says that countering the conventional wisdom can feel lonely; you are out on a limb, and someone is approaching you with a power saw, salivating at the opportunity to cut down that tree branch. How many times have you expressed an opinion contrary to what everyone else is thinking, saying, recommending? Holding fast to your opinion alienates you from the crowd. It’s situational cooties. Challenging the status quo is never easy. Sometimes you feel like a pariah, and you are because you are bucking conventional wisdom. It’s easy to doubt yourself when you hold an opinion that’s different from the rest of us, but that doesn’t mean you are wrong.
4. “Show some humility.” That’s an especially tough one for us lawyers. Humility doesn’t seem to be in our DNA, which is probably why we went to law school. As Seib points out, there’s no substitute for person to person listening, which, given our propensity to not listen, is hard to do. We choke on the words, “Whoops, I made a mistake,” or “you’re right.”
Seib remarks that in Washington, D.C. “…impressing others with how much you know sometimes gets in the way of finding out how much they know.” That is just as true for lawyers. We know what we know, but we don’t know what they know, and if we’re going to represent clients effectively, we need to know not only what our clients know, but also what the opposing side knows. How many times have you been surprised by what the opposing side says and knows? By a witness? By an expert?
Companies such as Gavelytics may be able to confirm conventional wisdom about a bench officer or rebut it. It may be able to reduce uncertainty, but not eliminate it. I don’t know about yours, but my crystal ball is in the shop.
Jill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
