Here's what I mean. Marty Byrde, the financial planner played by Jason Bateman in the Netflix series, is crafty and smart. But he gets criticized for thinking too much, and not taking action. In this particular episode, his wife burns a field of poppies that will be turned into opium. Byrde agonizes over what to do with the field, but his wife ultimately takes action. Her decision has consequences, but she arguably saves the day.
Put another way, trial lawyers drink whiskey and try cases while litigators drink wine and take depositions. Those aren't my words. They belong to a South Dakota state court judge. The full story is here, but the general idea is to avoid getting bogged down with unnecessary motions and formulas. The law is filled with rules and structure. The most successful attorneys follow the rules, but they're also flexible and they'll call an audible when the circumstances require it.
I'm still learning to balance this stuff. In the six years since I was sworn in, I've made my share of mistakes. But most of my audibles have turned out fine, in part because the decisions were calculated risks based on research and careful analysis. It's easy for young lawyers to be paralyzed by indecision and uncertainty, or fear of being wrong. That's not how you win at trial, or even in motion practice. Whether the case is a garden variety car wreck, or complex litigation against a giant pharmaceutical company, action is almost always better than inaction. Creativity and flexibility work better than sticking to your outline, or filing the same motions every time. This may not work if you're a real estate or banking lawyer. But it's the heart of my playbook for practicing civil litigation on behalf of plaintiffs. And after a 12-hour day of trial prep, it came into focus with the help of a TV show and a glass of some of the finest bourbon I've had, which just happens to be made at Copper & Kings, right next door to our law firm here in Louisville.
