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The Creative Edge Can Make All The Difference

By May 25, 2015May 6th, 2021No Comments

This may offend some lawyers (and others) but in addition to all of Creation – God Created the “Bell Curve” which defines basic attorney intelligence and competence. The moral of the story is to always shoot for a professional as far to the right of the center as you can.

That said, most lawyers are well trained in their areas of practice – whether you are dealing with intellectual property, litigation, or soon-to-be ex-spouses fighting over possession of the 150-gallon saltwater aquarium and assorted kids. For example, in a complex case dealing with the validity of a commercial contract or IP rights, proper client research will generally lead to equally competent and experienced counselors on both sides of the aisle and counsel tables. All things being equal, a small advantage in favor of the plaintiff or defendant can make all the difference in the world and increase your odds of winning. Here are a few pointers to consider.

  1. Theatre Experience is a Good Thing! – OK – this is self-serving and should be overruled by the Court since “yours truly” has served as a theatre director/writer/producer/composer for over 30 years. Granted, I am probably in a very limited group of attorneys with a like experience. The point, however, is that I make it an absolute rule NOT TO BE BORING IN COURT. Believe me, that can be an important factor when pitching to a jury or even a judge. Many lawyers love gray suits and monotone delivery. When I see a member of the jury or judge yawn, I get a shot of adrenalin that I can move in for the kill or at least an animated point. Remember, when the evidence is stacked up evenly on both sides, many times the most interesting presenter of the facts will have a slight advantage. Even a 1 percent advantage can make the decided difference in many cases.

In the likely event, your prospective attorney does not have prior theatre experience, you can get a sense of her style when you are in the selection process. If you find yourself nodding off before you sign the dotted line (or pay a retainer if required) – find the nearest exit door!

  1. Find the Needle in the Haystack – This is a hard one to pinpoint but crucial. When I was a partner in a Washington law firm, we were specifically retained for our ability to search far and wide for the best legal precedent to support our clients’ arguments. This is important, particularly in complex cases, where the law appears at first glance to be against your position. If that is the case, the associates I have trained over the years are commanded to go back to the drawing board a/k/a Lexis Research Data Base and search again more creatively. I have won a case or two over the years where the odds were small based on the discovery of a single case lurking behind several bookcases in a library long forgotten.
  1. Ability to See that the Whole is Greater than the Sum of all the Parts – You’ve heard this before, but it is a critical factor in selecting an attorney. Another way to put it is to avoid the attorney who cannot see the forest for the trees. In my view, the mark of intelligence and excellent lawyering is the ability to see patterns and make connections. Getting lost in disparate details and non-essential stupid details is not only a waste of time and expense but can be fatal to your case.
  1. Be Funny. Lawyers are not typically viewed with the comedic flair as David Letterman and they do not have to be. However, a little humor can go a great distance in making a point or losing/winning a case. One of the best attorneys I ever encountered who was my mentor years ago in Washington, would open his argument with a joke which ripped the heart out of opposing counsel and his case. The tragedy for opposing counsel was that he found himself laughing as well along with the judge or jury. Not a good way for your opponent to start but good news on your side of the bench!

BOTTOM LINE – Winning a case can never be guaranteed and no lawyer should ever make such a representation. All things being equal, assume the lawyers on both sides of the aisle have equal abilities. That said, Creative Lawyering can give you that slight edge which results in the judgment going your way and that is more than worth the price of admission.

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