Tuesday, December 27, 2011

The Best Offense is the Best Offense: Creating an Indefensible Position for your Adversaries

In the movie The Usual Suspects, Kevin Spacey makes a comment that has more widespread significance than the writers probably intended.  He states that "the greatest trick the devil pulled was convincing the world he didn't exist."

People frequently say that the best offense is a good defense.  That actually doesn't make sense.  I understand the thrust of their proposition, but the best offense is an offense that is indefensible.  The best defense is a a defense that is impenetrable.  One way to make sure your adversaries do not have a impenetrable defense is by making them think you don't have a good offense.  That's why the devil's convincing the world he doesn't exist works so well.  Because people put their guard down.  They stop defending. 

A few weeks ago, the 13-0 Green Bay Packers came to Kansas City.  My wife gave me an early Christmas present by getting tickets to the game.  The Packers have been my favorite team since I was about eight years old.  And this was the only professional game that I'd ever been to. 

The Packers have been absolutely unstoppable this year.  And the Chiefs, well, have been quite stoppable.  But through the entire game, the Packers couldn't contain the Chiefs offense.  Not that the Chiefs scored a ton of points, but that it seemed as though the Chiefs could pass ten yards at a time, at will.  Why do you think this was?  I tend to think that the Packers were over confident in their own abilities and underestimated their opponents abilities. 

We can utilize these analogies in our own lives.  Make sure that people don't see you coming.  There is a time to be professional and competent.  And I'm not proposing to feign ignorance.  I'm just proposing that it would be much better to be underestimated and win, right? 

I know an attorney that sometimes seems unkempt and non-caring.  For instance, one day the right side of his shirt was completely un-tucked.  Suit, suit-coat, button-up shirt and tie . . . and half of the shirt un-tucked.  The next day?  Suit with no coat, french-cuffs with cuff links, but the cuffs were folded contrary to the creases and looked sloppy.  I don't know if he did this on purpose (and these were NOT the only two instances of wardrobe malfunction), but at first glace, you could question his ability to lawyer.  However, when you read his briefs or and saw him when he spoke, you instantly knew you had underestimated him and under prepared.  This guy was good. 

Its interesting to watch young attorneys interact with each other, judges, and attorneys senior to them.  Some of them try way too hard to seem competent.  Their behavior isn't congruent with their own beliefs about themselves and it shows as self-consciousness. 

Just because we're young doesn't mean we're incompetent.  You don't have to prove to others you're competent through your interactions.  If you're good, they'll know it by the trail of success you leave behind you.  Don't think that your young age, or few years of experience makes you any less.  Some may know of this quote, "Don't let anyone look down on you because you are young, but set an example . . ."  Even Superman had to start somewhere . . .

And remember, if someone underestimates you because you're young, you just gained a powerful advantage.  They will not see you coming.  So utilize their over-confidence by using a great offense on their indefensible position.

Thursday, December 15, 2011

Sacking Armchair Quarterbacks: How to Keep your Critics from Ruining your Day

Critic: "One who tends to make harsh or carping judgments; a faultfinder."  That is not my definition.  That is one of three definitions one can find on my favorite dictionary source.  Dictionary.com. (I have downloaded about five apps for my phone.  I'm halfway embarrassed and halfway proud to say that one of them is Dictionary.com.  I'm embarrassed to say one of them is Pumpkins v. Monsters.)

A faultfinder.  Remember this term for a few minutes. 

Undoubtably, you've been the victim of critique.  Undeniably, you've been the subject of carping judgments.  Unquestionably, you've been the target of harsh and mostly unwarranted faultfinding.  It probably didn't feel very good did it?  You know what?  I know a secret.  I know how to make those feelings go away.  I didn't say I know how to make those PEOPLE go away.  They're like the mythological Hydra.  You chop off one head and three more pop outta the nasty stump . . . Anyway, I do know how to make sure you don't have those feelings anymore.

Remember to roll your Rs.  Like the Hydra, these three heads will repopulate as you implement them.

Recess - When you get criticized (and I mean unwarranted, unconstructive criticsm), just take a break.  Stop what you're doing, sit down, let the unsavory feeling of defeat sink in.  (Now don't over do it!  Don't throw yourself a pity party!)

This break will give you two distinct opportunities you need.  The first, and most ideal, purpose of this recess is for holding your tongue.  Critics love drawing you out.  Critics LOVE ratling you.  Don't let them!  Critics love making you squirm.  So don't squirm.  If you take a short recess, you'll find that you won't say something you regret.  And you get to gather your thoughts for a response (which I don't advise doing!)

Second, this recess will give you exactly enough time to determine if the critique has merits.  Even if the critique is from your most notable enemy, remember that they probably see you differently than you want to be seen.  In any case, take note of the critique long enough to evaluate your actions in light of your beliefs and morals.  If they check out, move ahead 5 spaces to "Recast." 

Recast - Recast means to reorganize or build up.  This second stage is vitally important.  You won't be able to move to the third step without it.  You should think about the critics and the event being critiqued.  Also think about the direction you're headed in and the purpose for your actions. 

What I've found is that MOST critics are only critics.  I mean THAT'S ALL THEY DO!  They aren't really progressing like you are.  They aren't going for it! They aren't putting their reputation on the line like you are!  They aren't really attempting anything! That's why they have the time to critique you.
A lot of them are armchair quarterbacks that won't make a decision.  But then they'll degrade everyone after someone does finally act.  (Remember MOST.)  Some actually are just grumpy that won't be happy at all.  But that doesn't take away the fact that you're still doing something.

Maybe you did mess up.  Remember, the word faultfinder? We all have faults. Your critics have faults. And to be honest, your critics are probably really good at identifying their own weaknesses . . .

Once you've realized that your critics don't have any REAL bearing on you or your situation, then you're ready for the next step.  If you are now smiling about your critics lack of drive and initiative, move ahead 2 spaces to "Release."

Release - This step is when the unsavory feelings go away.  Once you have evaluated yourself to determine if change is needed, and recast the situation to understand that you're progressing, now you must know that this criticism won't hold you back.  The only thing that is holding you back is hanging onto the upsetting words.  If you're bitter towards someone, I'll guarantee that they've moved on.  They don't care that you hold a grudge.  Chances are, they don't even know. 

So draw out your confidence and get moving.  Keep progressing! And know that you'll get criticized again.

Wednesday, December 7, 2011

4L: What to do when . . . You get your first responsive pleading

From the Gemini Geek -
Come one! Come all! Welcome to the emotional roller coaster! Step right up! And defy your inner constitution!  Your one ticket gets you one responsive pleading! Prepare yourself as you're taken to the top of the track and dropped 300 feet in two seconds . . .!

If you're a new attorney and you've already received your first responsive pleading, then you know exactly what I'm talking about.  If you're not a new attorney, and you've received a reply brief, or Suggestion in Opposition recently, you're in the same spot.

Let's deal with the new kids on the block first.  Chances are, you've gotten an answer to a complaint.  And that first answer completely took the wind from your sails.  Well, here's the first piece of encouragement.  IT WAS A PLEADING AS A MATTER OF COURSE for your opposing counsel (OC).  OC didn't personally tell you're wrong, you're inexperienced, or you'll pay their attorney's fees.  That was probably one of several answers they filed this week, and most of them probably look very similar.  I'll bet they all asked for dismissal with costs paid by someone other than them.  That's just how it goes . . .

The other piece of encouragement comes now: Tom Bender, a very experienced, highly respected, successful attorney told a bunch of us youngsters something that I've tried to remember every day I file something against BigLaw.  He said this, "You younger attorneys, at the beginning of your career, are probably only 5% less competent than successful attorneys that have been doing it a while."  And I believe him.  After all, you do have the same degree and professional licensure.  You just have to learn how to use it.  And you will.   And you are.  Don't sell yourself short.

My story:  My first responsive pleading came one month after I became an attorney.  And the OC happened to be at one of, if not THE biggest, most reputable firms in the city . . . My next responsive pleading? Bigger city; bigger firm.  Do you know what these did to me?  I saw the outside of the envelope with "BigLaw" letterhead addressed to "Mr. Jonathan D. McDowell, Esq." and started shaking.  I started reading the answer and became nauseous.  Then I read, "dismissed with costs . . ." and it nearly knocked me off my feet.  I can remember reading it while standing in front of my office chair.  I sat down with all confidence sucked from my being . . .
From Boxing 360 - http://www.boxing360.com/

Once I recovered a few days later (by that I mean "after laying in fetal position for three days"), I did some research, I looked at my facts again, I realized my client's case was great, and then I responded.
For the experienced folks:  I don't think this changes, does it?  Although I don't feel AS bad when I get a reply, I still panic and think that my case is terrible and we're gonna lose!  The Chair of the Missouri Bar Solo and Small Firm Committee, Chris Wendlebo and I were discussing this exact issue.  He has been practicing for about 12 years.  He told me that almost every time he gets a response telling him he's wrong, he panics.  And then he looks at his arguments again, realizes they're strong, and understands he has the higher ground. 

From Tech Shout - www.techshout.com
Bottom line kiddos: You're not alone.  You're panicking with the rest of us!  However, just know that some of these responsive pleadings are a matter of course and are no reason to get excited.  When you do get the wind knocked out of your sails, try to get your sails back up as soon as possible.  You're not dumb.  You're not a loser.  You don't have a terrible case.  You're smart.  You're passionate.  You're competent. 

You're an attorney.