Litigation

Does Your Lawyer Have Emotional Intelligence?

by Lee Gesmer on March 4, 2020

Does Your Lawyer Have Emotional Intelligence?

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man.” Abraham Lincoln.

Does your lawyer have emotional intelligence? Or if you’re a lawyer, do you?

Listening to a couple of doctors on radio interviews talk about how important emotional intelligence is for the doctor-patient relationship got me thinking about emotional intelligence in the context of lawyering.

What is emotional intelligence (EQ)? Howard Gardener describes it this way –

Your EQ is the level of your ability to understand other people, what motivates them and how to work cooperatively with them,” says Howard Gardner, the influential Harvard theorist. Five major categories of emotional intelligence skills are recognized by researchers in this area.

He goes on to describe the five major factors, one of which is empathy:

The ability to recognize how people feel is important to success in your life and career.

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Dirty Politics – How is This Like Lawyering?

by Lee Gesmer on October 12, 2019

“When they go low, we go high” Michelle Obama

“You can’t waller with the pigs and not get dirtyAnon

As I’ve watched the political events of the last few years I’ve heard each side argue that their side needs to “fight dirty” to match the tactics of the opposing party. 

I’m not going to voice an opinion on the political issues raised by these arguments, but I’ve learned one thing from personal experience: if you are an ethical litigator you are likely to be faced with a similar personal challenge at some point during your career. Sooner or later, and probably more than once, you’ll have a case where opposing counsel behaves borderline unethically, or even over the line. The list of ways in which a lawyer can skirt the rules to do this are countless. If you’re on the receiving end it can be upsetting and infuriating.

You, as the ethical lawyer, can’t change your opponent’s conduct.Read the full article

Litigation and Mental Models

by Lee Gesmer on February 6, 2019

Litigation and Mental Models

Good decisions come from experience. Experience comes from making bad decisions. Mark Twain

I’ve been reading about mental models. Everyone has these, whether they are aware of them or not. Doctors, engineers, sports coaches, electricians, architects, they all have them. Gary Kasparov has them for chess. Warren Buffett for investing. Nancy Pelosi for legislative politics. Bill Belichick for football (Tony Romo too). And, whether they are aware of it or not, lawyers have them.

Here’s Charlie Munger’s description of mental models:

you can’t really know anything if you just remember isolated facts and try and bang ’em back. If the facts don’t hang together on a latticework of theory, you don’t have them in a usable form.

You’ve got to have models in your head. And you’ve got to array your experience—both vicarious and direct—on this latticework of models. You may have noticed students who just try to remember and pound back what is remembered.

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Why Didn't the Blurred Lines Defendants File Rule 50 Motions? (Waiver, again)

You can find plenty of commentary on whether the Ninth Circuit Court of Appeals ruled correctly when it upheld a jury verdict that “Blurred Lines” infringed the copyright in “Got To Give It Up.” But another aspect of this decision has received little attention, and that is a mistake made by trial counsel for the Williams/Thicke defendants in this case.

One of the things that keeps lawyers awake at night (or should) is the risk that they will unknowingly waive a client’s legal rights. I wrote about this in 2008 (Traps for the Unwary – Waiver), and again in 2010 (Mister Softee Bitten By Waiver Under FRCP 50 ). In the 2010 post I observed that Microsoft’s failure to move for judgment as a matter of law (“JMOL” in legal jargon) under Rule 50 may have cost it several hundred million dollars.

The bottom line is that lawyers always need to be alert to the risk of a waiver.… Read the full article