What Better Trial Lawyers Learn From One-Pitch Wonders

Jonathan Cooper
Aug 23, 2017 · 3 min read

On the way out from a court appearance earlier this week in a highly charged breach of fiduciary duty matter, I was struck by the similarity between one-pitch wonders (typically fastball pitchers) in professional baseball, and certain litigators.

Consider:

The One-Pitch Wonder

You have this pitcher who can throw his fastball in the high 90s, and occasionally reach triple digits. He gets through the lower levels of the minor leagues, and no one can touch his stuff; at worst, his pitches are fouled off.

When he reaches higher levels of competition, such as the Triple A level, or perhaps the major leagues, though, he starts to learn a few important lessons, typically the hard way:

  • If you leave a pitch out over the middle, it doesn’t really matter how hard you throw it. It will get hit;
  • If your fastball is flat — i.e., it doesn’t have much movement — it will get hit;
  • If you don’t have a secondary pitch to keep batters honest, your fastball will get hit — hard; and,
  • If all you throw is fastballs (and don’t learn to actually pitch), you will blow out your arm within a year or two.

The Lawyer Who Only Knows One Way to Litigate

Over the past 20 years, I’ve encountered quite a few lawyers who strongly resemble the young flamethrower; they believe in fighting every step of the way, never conceding any ground, and pursuing every possible claim and defense — and doing so very aggressively.

To be sure, there is some merit to adopting that tactic; against lesser, or inexperienced competition, they can sometimes bully their way through.

But, like the one-pitch wonder above, there are a few other things that are equally certain, especially when these lawyers deal with an experienced judge, and go against more seasoned and skilled adversaries:

  • Unchanneled aggressiveness won’t impress judges (who’ve presumably seen bigger and more egregious cases than this one) and won’t cow an experienced adversary — it will just irritate them;
  • Fighting every single point (even dead losers) is a sure-fire way to lengthen the life of the case, and to raise dramatically the costs for the client. After all — and this happened to someone I know — is it worth spending $5,000 in client funds to recover $1,500 worth of scuba equipment?;
  • Fighting every single point (rather than strategically picking your battles) is guaranteed to erode trust and credibility (let alone foster animosity) with the other attorneys, and, perhaps more importantly, antagonize the court (who, after all, has a rather large say in how your case turns out); and,
  • Pursuing aggressively even very weak arguments tends to dilute the client’s stronger arguments, weakening what may be an otherwise strong case.

The Takeaway — Defining “Winning”

The smarter baseball pitchers — the ones who endure and succeed over a longer career — learn how to become pitchers rather than just throwers. Doing so allows them to continue competing and winning at a high level and get hitters out, even when their ability to overpower hitters wanes.

Similarly, in the litigation context, the better trial lawyers never lose focus on what constitutes a “win” for the client, and they never pursue a case in a manner that guarantees more harm than good for their client. They strategically pick their battles, and make sure that a client is kept informed of the risks, costs and rewards for each major tactic — even when the forecast isn’t terribly good. In this way, the lawyer always “wins,” because she’s become a trusted advisor.

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