Sidebar. Be Yourself, Sell Yourself

• Author: Kenneth P. Nolan
• Pages: 62-63

Sidebar

Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 62

KENNETH P. NOLAN

The author, a senior editor of Litigation and the author of A Streetwise Guide to Litigation (ABA 2013),

is counsel to Speiser Krause, Rye Brook, New York.

It was my second medical malpractice

trial, and this time, I was determined to

win. In the crowded courthouse corridors,

I was enthralled by those with bright voic-

es and shiny Rolexes who boasted about

how they kept the defendant doctor on

the stand for “six hours,” “a day and a half,”

“three full days,” until the jury showered

them with riches. Yes, I would do the

same—berate the poor slob, emphasize his

ignorance, and catalogue his failures until

everyone applauded my genius. Length, I

reasoned, meant victory.

After two hours of accusatory and flam-

boyant questioning of the sad but some-

what sympathetic doctor, the judge called

a recess. “How much longer are you go-

ing to be, Mr. Nolan?” he asked with re-

pressed ire. “Another hour or two, at least,”

I replied with only a touch of indecision.

Face red, the judge exploded: “You’re

screwing it all up. You’re just going over

and over the same crap.” I knew he was

right. Even my enthusiasm was fading as

the jury sighed and shifted impatiently in

their hard seats. Relieved, I quickly asked

a few more questions and sat down.

That wasn’t the only reason I lost,

but that painful experience taught me

many lessons: To win, you need obvious

and overwhelming liability, especially in

conservative Staten Island. Humiliating a

helpless witness arouses a jury’s empathy,

leading those once-impartial citizens to

view you (and your client) with unmistak-

able bitterness and disgust. Finally, and

most importantly, you can’t be someone

else. You have to be you, warts and all.

For you are different, unique really. Some

crazy combination of genetics, environment,

and personality. And if you adopt the per-

sona of another, you will fail. Everyone

despises a phony, and if you parrot those

who charm with voice, insight, and wit, you

are dishonest about who you are. And your

adversaries, judges, clients, and juries are

not morons. If you lie about yourself, why

should they believe anything you say?

I know, I know—you’re shy, tongue-

tied, awkward, not Hollywood stunning.

You can’t speak three words without an

“er” or “um.” And you’re nervous all the

time, whether meeting a client or arguing

a simple discovery motion before some

weary judge. So you’re not the funniest,

the most loquacious or persuasive. Big

deal. Few are beautiful; even fewer are

extremely talented. Most lawyers are

average or a touch above. And your de-

ficiencies are more obvious to you than

others. Overcome them with effort and

determination. Make your argument with

clarity and conviction. Law isn’t ice danc-

ing—you’re not graded on style points.

And this applies to all aspects of your

work: interacting with staff and colleagues,

handling a pretrial conference, or crafting a

memo. You can always improve, but you’ll

never write like Joyce or orate like Obama.

Since you’re going to lose your share any-

way, emulate Sinatra—do it your way.

That’s not to say I didn’t sneak into

courtrooms to observe charismatic trial

lawyers as they pranced about, nor does it

mean that I didn’t harass the more experi-

enced with questions. I never hesitated to

barge into a partner’s office whenever I had

a doubt—which was always—even when

the response was, “Did you even go to law

school?” After all, that’s how you learn: by

asking three partners the same question to

ensure their answers are consistent. Once

you gain some confidence, you’ll no longer

blindly accept their wisdom. You’ll adapt

their advice to your strategy.

The mantras that “everyone’s equal”

and “you’re not better than anyone else”

have somehow become dogma among the

millennials. Nonsense. Some are faster,

smarter, better looking. Everyone who

combs gray hair believes our childhood

was better. Of course it was and, unques-

tionably, more genuine. If you couldn’t

drain a jump shot, you didn’t make the

team. “I’m not picking you—you stink”

was often heard when teams were cho-

sen for our street games. Even our nick-

names were candid: Jackie Fats, Tiny

BE YOURSELF,

SELL YOURSELF