Podcast - Living Without Feedback

Dan Small: If author Ken Blanchard is right when he says, "feedback is the breakfast of champions," then many trial lawyers are going hungry. As a trial lawyer, you may get plenty of advice, but you'll get surprisingly little substantive feedback on your performance in the courtroom. To develop your skills, you have to be creative and even aggressive in seeking out the constructive feedback that you need. In my most recent book for the ABA, Lessons Learned from a Life on Trial, I reminisce about several feedback experiences, including when, as an AUSA prosecuting corruption cases in the old federal courthouse in Boston, there was a group of about a dozen retired gentlemen who had discovered the courthouse and trials there as an endless source of entertainment. Over the years, they became expert trial observers. I befriended them, and they were a great source of feedback on what I was doing right and what I was doing wrong in court.

One obvious source of feedback, when you can get it, is the jury. However, jurors often don't want to give it to you. When the trial is over, they want to go home, and in many states, it's improper to contact them even after the trial. That's one reason that mock juries can be so helpful. You can get a wide range of direct feedback.

What about the judge? The unfortunate truth is, the judge probably won't give you feedback. Judges are busy, they're not accustomed to it and they don't want to create a ground for appeal. Most judges would dismiss the notion of giving feedback out of hand if it were suggested, and most lawyers are afraid to ask for it, anyway.

The client is a particularly poor source of feedback. Clients often are emotionally involved in the case, which affects their judgment. Clients also tend to be over focused on huffing and puffing, on winning, on minor inconsistencies and other things that don't help you get feedback.

The verdict is a form of feedback, but it isn't a very reliable one. Bad lawyers win cases all the time. Just as good lawyers lose them. Edward Bennett Williams, the legendary trial lawyer, supposedly said that 80 percent of cases are won or lost on the facts, regardless of the lawyer's performance. That means the lawyer makes a difference only 20 percent of the time. Whatever you think about his percentages, the basic concept is correct. And when bad lawyers win cases, often the feedback they get that they've done things just great is wrong.

So trial lawyers need to reach out for constructive criticism wherever they can find it. One way is to practice all or parts of your arguments in front of your family or friends or colleagues and ask for their questions and their input. Even strangers. Strangers in a bar, at the gym, anyone — talk to them about your case and listen to their questions. Even the mirror might give you some useful feedback, although it won't ask many questions.

Another way is to ask for it. Ask people to come to court to watch you. Ask people who are already there. Ask people who have watched you before. Make it clear that you don't want a cheerleader. No one is going to help you by being too nice or too gentle. All of this puts a premium on being self-aware and self-critical. Those are difficult qualities for most human beings to master, much less courtroom lawyers.

Age and experience also play a role. It's particularly difficult for people to keep trying to improve their skills once they've reached a certain level of success. But if you are living in a world with little real feedback, you're not likely to improve without thinking clearly about your own abilities and performance.

The essence of trial advocacy is communication. To improve as a trial lawyer, you need to try to obtain constructive criticism and you need to listen to any amount that you can get. The challenges are finding ways to get feedback, making sure that it's honest and direct, and then disciplining yourself to ignore your ego so you can listen and learn. It may be the hardest challenge that faces any trial lawyer.