To protect American values
of equal justice,
and free speech
for all working people.
Unlike the other pages here, this page is not dedicated to any one subject matter or type of case. This page collects and presents blog posts from Joel Dillard about his basic philosophy toward the practice of law. We hope this sheds light on the kind of law firm we are, and the level of service you can expect.
Gambler, Soothsayer, Counselor, Warrior
What is a lawyer?
In Kenny Rogers' immortal words, you've got to know when to hold 'em and when to fold 'em. Lawyers live the gambler's reality every day - and not just when they roll the dice on a big contingency fee case. It is remarkable how much like gambling the practice of litigation is, as a few recent experiences really brought home to me.
You've got to know when to fold 'em. Being right is no guarantee. The truth will not protect you. Because it isn't just about the truth - but the proof. And with a half-dozen credible witnesses against you, and no one to stand by you, it matters to no one but God whether you are telling the truth. It may be time to find a way to pack it up and move on, to minimize the damage. Don't pray to the Court - the courts of man know no God - just fold 'em before you lose your shirt. The lawyer must know when to walk away from the table, no matter how deep they are in the hole.
But you've also got to know when to look 'em in the eye and re-raise, even when they make a big bet against you. As I recently had cause to say to someone -
You've got a pocket pair, and they're aces, but if you're looking for me to promise you that you're going to win, there's no way I can do it. You haven't even seen the river yet. That doesn't mean you fold. You've got a great hand - play it! You may get cracked, but when you've got a hand to play you can't let them buy the pot with what may very well be a bluff.
Humankind cannot know the future, but a lawyer has to try. And has to do it after only a few words conversation with a perfect stranger. As Dickens said
every human creature is constituted to be that profound secret and mystery to every other. The lawyer must attempt the superhuman feats of the soothsayer.
When a stranger walks into my office - and every client was a stranger once - you have to feel deep within you what this person is all about. They may tell a good tale, they may win an Oscar for their acting, they may look to have a significant case, and sometimes you've got to say
no thanks because you feel it in your gut that something's not right.
Or maybe they walk in with nothing but a suspicion, a speculation, a guess that they've been done wrong. Maybe they set off all kinds of traditional alarm bells that say
stay away from this one. Maybe they have a long and uneven litigation history. You take the client anyway, because you just feel it. (My biggest settlement to date had its origins in an initial interview like this.)
And at trial this process repeats with every single juror: after only the slightest few questions in voir dire, you must choose whether to put your client's livelihood in their hands.
Sometimes a client will start to get emotional, and feel compelled to apologize for it. I say
don't apologize, this is what I'm here for. There is a reason they call a lawyer a counselor at law. And it isn't just to listen to the client. It is necessary to understand the client's psychic state to know how to serve the client's true best interests.
This is particularly true in a field - like employment law - where emotions run so high. Like family law and divorce, losing a job can be one of the great traumas of life. Add into the calculation mental or psychological disabilities in ADA, Rehab Act, or FMLA cases, and it can make for quite a potent mix.
Sometimes the gambler has to take a back seat to the counselor: the right gamble may be to play the hand, but the right decision for the client is to settle.
And sometimes the counselor is needed to help the gambler survive. No matter how wronged the client may feel, the counselor is the one who helps the client find a way to do what is in their best interest, and let go.
What more is there to say? This is what everyone imagines the lawyer to be - at least if you judge by lawyer's TV ads.
And it is often true. When the cards are all down on the table, when you've read the tea leaves, when you've confronted the internal conflict... you go to war. It may mean shouting down repeated and improper speaking objections, it may mean deposing the company president armed with a long and embarrassing list of his
inconsistencies, or filing a motion for well-deserved sanctions, or a devastating cross-motion for summary judgment. A jury trial is like a war from start to finish, with a host of complex tactical difficulties worthy of Sun Tzu, and sometimes the only way to win is to see it to the end and achieve a decisive victory on the field of battle. This is often the most satisfying part of the job.
Good Help is Hard to Find
It is extremely hard to judge the skill set of a stranger - or even a friend, if you have not worked with him before. There are those who do just enough to get by, and those who are motivated to be the very best. Whether it is hiring an employee, retaining a lawyer, or finding the right place to get a haircut, the difference between
good and merely
good enough is subtle.
And yet a wide gulf separates the results these two types of people get. The drive to be constantly improving, and the curiosity to be always seeking out opportunities for growth - these are the things that set a person apart.
And they are particularly important in a lawyer, whose work is such a complex mixture of practical and intellectual enterprise.
Experience is not a sum of years; a person who seeks out challenges - and learns from them - can pack more meaningful
experience into three years of practice than an incurious person can accumulate over thirty years.
My personal belief is that no amount of hard work and determination can replace the intrinsic motivation of a genuine curiosity. Curiosity makes a hard research problem into a journey of discovery; it makes a dry legal brief into a work of art; it transforms every task into an opportunity for exploration. A person who works out of curiosity, who works in order to learn, will naturally and organically continue to improve.
I call it
the school of litigation, and it is what makes my work such a joy, day in and day out.
When I read this last night, I knew that I would have to share it. It spoke deeply to me and my work. And so, without further preface, here is Milton's english verse rendition of Psalm 82 (with notes and italics omitted).
God in the great assembly stands
Of kings and lordly states,
Among the gods on both his hands
He judges and debates.
How long will ye pervert the right
With judgment false and wrong,
Favoring the wicked by your might,
Who thence grow bold and strong?
Regard the weak and fatherless
Despatch the poor man's cause,
And raise the man in deep distress
By just and equal laws.
Defend the poor and desolate
And rescue from the hands
Of wicked men the low estate
Of him that help demands
They known not nor will understand
In darkness they walk on;
The earth's foundations are all moved
And out of order gone.
I said that ye were gods, yea all
The sons of God most high,
But ye shall die like men, and fall
As other princes die
Rise God, judge thou the earth in might
This wicked earth redress
For thou art he who shalt by right
The nations all possess.
Studying games is a good way to understand strategy in real life situations - including in litigation. And what better games to study than two of the all-time greats: chess and poker?
Chess: perfect information and imperfect players
The two key things to realize about chess are that it is - in theory - a game of perfect information and no luck.
- There are no secrets. Both you and your opponent know exactly what pieces each player has, how they move, and where they are placed on the board.
- There is no luck at all involved. No drawing from a deck, shuffling, or bounce of a die to imbalance the game.
More than that: there is a database containing every significant game ever played for decades - including every significant game you have played, and that your opponent has played. Before you play a game, you and your opponent each have the opportunity to study this information in any way you like in order to prepare.
And even beyond that: in today's game you and your opponent will each have access to supercomputer programs that are far better at understanding and playing chess than any human ever has been. Before the game, you and your opponent each have the opportunity to learn from these computers and the way they analyze games.
So what determines the outcome? Our limits and imperfections as players.
There are at least four ways to win (or lose): Tactics, Preparation, Strategy, and (lets call it)
Luck. First, if you can see further ahead tactically than your opponent, you will probably win. You will be able to see when your opponent has made a mistake and how to punish it. You will be able to see opportunities and threats that your opponent will overlook. You can set traps: inviting-looking moves that appear to win immediately, but which in fact end up losing just a few more moves down the road.
To win this way, you must have strong logical powers, short-term memory capacity and raw cognitive speed - what they call
calculation - as well as practice in recognizing tactical patterns in the game. In
forcing lines - where there are only one or two choices that make any sense in a series of moves - the best players will be able to calculate a dozen moves or more down the road to see who comes out ahead. The same is true in endgames, where there are only a few pieces left. But no matter how deeply you calculate, if you overlook just one option along the way, it could cost you the game.
Second, you can win a game by being better prepared than your opponent, studying particular lines in the opening that they will not expect and surprising them with some
home-cooked preparation that you understand better than they do.
To win this way takes a lot of research and private study of games, analyzing different options to great depth. It also requires a nearly perfect long-term memory, so you can carry all that information with you into the heat of combat in every game.
Third, you can win if you have a better strategic understanding of certain situations. Things like what tends to makes a pawn
weak, whether it is better to have an
closed position given the placement of the pieces, which spaces or sides of the Board will be most critical to control, whether it is better to get a
material advantage or
the initiative in a given moment, where to put pieces now so they will be most effective later in the game.
When players are evenly matched in tactics and preparation, strategy will usually decide the outcome. This requires a very different kind of study than
preparation. This is about studying and understanding the reasons behind different moves and ideas. This is also where the greatest rewards of thoughtful experience are found. Trying ideas and seeing what happens, analyzing your positions, helps develop an intuition about what works and doesn't strategically in a game, a general sense that a certain situation calls for pursuing a certain idea for how to improve the position.
Lastly, there is what I have called
luck, but which really isn't luck at all. Remember, there is no luck in chess, no chance events, no accidents. This is actually about psychology. For example, if you happen to lose a brilliant strategic game by a stupid tactical mistake, it can be hard to forget it and move on to the next game. You can go
on tilt, where you find yourself unable to focus properly, and so make a series of additional mistakes. A player can also get tired, sick, hungry, or distracted for any other reason. Or perhaps someone underestimates you, and takes a risk that they don't think you will be able to punish them for, and you manage to find the right way to respond. In this way great players can lose to lesser ones. Or perhaps they take a risk that it seems like you ought to be able to punish, and you
overpress trying to take advantage, and wind up with greater weaknesses yourself as a result. Or maybe someone is, because of the tournament situation or a psychological reason, too desparate to force a win when they should be content with a draw. They can wind up losing.
Chess and litigation
Trial practice is most like chess after the
discovery process is concluded, when (in theory) all the information that can be presented at trial has come out and there are no more secrets lying in wait. The Judge and the opponent are known quantities. Their past actions are all public, on the docket, ready for study. The jury is unknowable - they are more like a toss of the dice - but there are some similarities to a game of perfect information at this point. The same four elements are key: Tactics, Preparation, Strategy and
But before trial itself, probably the better model is poker. That will be the subject of our next post.
Studying games is a good way to understand strategy in real life situations - including in litigation. We discussed the ultimate game of perfect information - chess - last time. Today, the opposite: poker.
Poker: incomplete information, probability and psychology
Chess we described as a game of perfect information and no luck. In poker we find things quite different. In, for example, Texas Hold'em, you start betting when you only know two of the cards in play, when there are going to be 2x + 5 cards in play by the end of the hand. The game depends on two qualities in the player:
- Understanding the probabilities and strength of different hands that you may get as the cards are laid down.
- Understanding and managing your own psychology, and reading the psychology of others.
Probabilities in poker
Before you can even begin guessing who is bluffing and how to play your hand, you have to know how strong it is. The simplest part of this task - that every casual player can manage - is to know which hand you have, and which other hands it wins and loses to. This is fundamental, like understanding how the chess pieces move.
Next you have to know during the game the probable strength of what you will have when the hand is over. For example, before any cards are laid down, which has better chances to win, a pocket pair of 10s or AK - and how much better? Later on, what are the chances that you complete your flush on the turn or the river? or your straight? You cannot bet intelligently without knowing the answer.
At the final level of statistical sophistication, you can improve further by understanding not only your own probabilities, but, based solely on the cards on the table (and in your hand), the probabilities of the strength of hand of other players.
Once these probabilities are mastered, you can generate a theoretically
correct value for each hand at each moment. This is the baseline of information needed to decide how to bet. Most casual players do not take advantage of all this reliable information revealed by the game.
In a very short game, luck outweighs probability and it doesn't matter so much. But as more hands are played, the balance shifts. In theory, over an infinite number of poker hands, the end result should approach that of true calculation.
Psychology begins with the player understanding and managing himself. How do you react to an unlucky loss? How do you react to a win? A strong grounding in the probabilities helps manage these tendencies.
And then we get to what most people think of as the essence of poker: unreliable information. This comes in two types: information from the bets themselves, and information from
tells and other understandings of psychological tendencies.
Is that big bet a sign of confidence in a strong hand, or a bluff designed to drive out the competition and win by default? Is a small bet a sign of weakness, or is it designed to increase the size of the pot by keeping people in the game for longer?
Then there are
tells, the most famous element of poker. This is how the pros eat the online poker nerds at the table in Vegas. It involves reading another person's physical mannerisms for information about their emotional state and thus the strength of their hand. Experience and close observation reveal tells over time. Sunglasses, hats, carefully maintained breathing and posture, and even video replay review - these are the tools used at the highest levels to try to limit a player's own tells.
Poker and litigation
Litigation is more like poker than chess, especially in two crucial phases. First, in the pre-trial phase, during discovery, all the participants have incomplete information and must make intelligent guesses of how to value the case, and where to look to improve its value. Later, at trial, the psychology of the jury becomes key. In voir dire, the lawyers read tells to help pick a jury. And during trial, the lawyer is always probing where the jury is psychologically and adjusting his approach in response.
My work is about work. I have devoted my professional life to fighting for basic fairness in the workplace - which means due process, free speech, and equal justice. It was a pleasant surprise for me, then, to hear the unique spin which evangelist Bishop Barron put on the paean to the
good wife in Proverbs 31. (I've skipped the first minute in which he introduces the wisdom literature generally.)
It is a bit of inspired brilliance. The title is somewhat misleading, as the comment about melancholy is just made in passing. This is about the spirituality of our daily work - from doing the dishes, to investing, to building things with our hands, to writing and intellectual work.
Bishop Barron's point is that our work is not something extraneous to the spiritual life, not something secular that we do alongside of our spiritual interests, but can be full of spiritual significance. It awakens our power as creators, and also remakes us in the process. In our work we become collaborators with God's creative energy. I hope you enjoy it.
A few years ago a friend of mine wrote something amazing about his experience getting fired. I've shared it with clients and others that have called from time to time, and wanted to share it with everyone because I think it is very powerful.
I can't tell you how many times we've talked to people facing something like this - probably a dozen or more per week. Though I myself have not faced anything like this yet, it is a basic reality of the way we've decided to organize our economy and society; at some point in our lives, the vast majority of us will have a bad experience like this at work. Whether it is ongoing harassment, or a really toxic encounter with a boss or coworker, or a firing, something like this is to be expected eventually over the course of a full career.
This reality should give us compassion for others in these situations, and it should help us appreciate the importance of strengthening the laws protecting due process, free speech and equal justice at work.
It can also be an occasion for self-reflection, like it was for my friend. How can I get better? Where do I have strengths and weaknesses? How can I be a better person and a good provider? There are real opportunities in a setback like this. In particular, if this experience is part of a pattern - if you always seem to beef with somebody in every workplace, if things always go sideways after a couple months at a new job - this reevaluation and growth is especially important.
But this is key: do not to allow a frustrated expectation, bad encounter, or setback to shape your sense of who you are at a fundamental level. An isolated bad experience like this frequently reveals more about your situation - and our society in general - than it does about you.
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