When Tactics Trump Strategy

In law, as in life, always be sure the juice is worth the squeeze.

Just a quick disclaimer: I do not profess to be, nor am I, a courtroom wizard. I do, however, know a thing or two about persuasion. Lately, since reading the Scott Adams blog, the science behind it has become a bit of a hobby of mine.

Which brings me to the purpose of this post today. I recently attended a CLE (continuing legal education) session on the power of pre-trial practice. It was taught by a guy who is a bona fide legend in the courtroom. Seriously, I learned more about how to conduct an opening statement in an hour-and-a-half than I’ve learned on my own in actual practice.

What amazed me, though, was that some lawyers, even senior trial lawyers, seemed to miss the point completely. For example, the presenter told a story about an effective way the he witnessed opposing counsel gain rapport with a panel of jurors during voir dire (the time when attorneys get to ask an array of prospective jurors questions in order to select the ones they think will be best in the jury box). Another attorney asked the presenter why he didn’t just object to the attorney’s move. The presenter advised that he could not think of a way to go about making the objection, so he just remained quiet.

After the conference, I asked if he could expand on that answer. He replied “I could not figure out a way to object without looking like a horse’s ass to the panel in the process…” If he won the objection, he was the jerk who kept the jurors from talking with the nice attorney. If he lost the objection, he would be the jerk who tried to keep them from talking to the nice attorney. Either way, the presenting lawyer loses the likeability contest before ever making an argument… and THAT is why he didn’t make the objection.

I think that, in my own practice, this is a common problem I’ve witnessed. Often we lawyers are so focused on winning every argument that we forget that the cost to our own credibility in front of those who matter is not worth the potential victory… The strategy is to win, but tactical considerations may trump strategy in short-term considerations.

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