A funny thing happened on the way to 24-hour legal news: We may know less in some respects about what goes on inside of courtrooms, rather than more.
Not in terms of who’s representing whom; which lawyer just won a big battle; or what firm is merging. But in terms of finesse, the sound of the gears whirring inside the finely tuned engine at the heart of America’s greatest trial lawyers.
That purr is unsusceptible to headlines and tweets. Instead, it requires thought and reflection.
That was the inspiration of veteran trial lawyer Courtland Reichman, a McKool Smith principal, and Michael Coston, the firm’s CMO. Entranced by the power of persuasion, juries, word choice and other havens of nuance, Reichman and Coston became inspired at the potential a podcast interview with great trial lawyers would offer for education – to practicing lawyers, hopeful litigators in law schools everywhere, jurors and the public at large.
The result is an upcoming series "Behind the Trial" produced with Benchmark Litigation and hosted by Reichman, who brings 22 years of trial experience – from death penalty defense to commercial to IP litigation – to interviews with legendary lawyers including Cravath Chairman Evan Chesler, who will kick off the series.
Other legendary lawyers who will share their thoughts on juries, fear, strategy, closing arguments and the textbook on trial practice include Boies Schiller’s David Boies; McKool Smith’s Mike McKool; Weil Gotshal’s Diane Sullivan; Morvillo Abramowitz’s Elkan Abramowitz, Kramer Levin’s Gary Naftalis, and even a sitting judge, Hon. William Alsup of the U.S. District Court for the Northern District of California, among others.
Reichman and Coston spent six months researching and interviewing the lawyers – getting them to spill their secrets and techniques.
“Trial practice is near and dear to my heart,” says Reichman, “especially because I spent years talking to clients when they say, ‘What's your area of specialization?’ And they might mean patents or antitrust or preemption, and I'll say, ‘Trial work is my technical area.’”
And while there are skills you learn through formal education – those are less than half of the equation in terms of what moves the needle in persuading people. What happens in “real honest-to-God, hand-to-hand persuasion isn’t discussed,” he said.
So he cracked the books and found inspiration in psychology texts and papers. Around the same time, he was listening to some favorite podcasts – and voila! He realized that to truly capture the magic behind a trial lawyer, you need a podcast.
Reichman says he wanted to capture the voices of senior lawyers with storied careers – lawyers who not only have vast amounts of knowledge but are used to distributing it orally.
“That's our tradition,” Reichman says. “That's the only way this information is passed on.”
They also saw an opening to explore the coexistence of mystique and disdain of lawyers.
“Law & Order’s popular for a reason. Every mother wants her daughter and son to be a lawyer, and yet people hate lawyers, especially trial lawyers,” says Reichman.
Like other lawyers, he’s also picked up on the dialogue about what we even need jury trials for, and hopes the podcast will underscore the role the jury trial plays as a cornerstone of democracy.
They selected their dream list of lawyers to interview through a rigorous review of organizations like the American College of Trial Lawyers and publications like Benchmark. They then prepared lists from which they performed due diligence and then assessed the overall composition of what each candidate would bring to the project.
As for the attorneys set to be interviewed, and what the project is still looking for, the unifying characteristic is greatness, whether in big commercial cases, criminal, civil rights, pharmaceutical, country lawyers, a judge and perhaps even a psychologist.
“We're trying to think broadly about what it means to be a trial lawyer. It's not about a particular type of practice. It's about trying to understand the different aspects of what it means to be the best trial lawyers in the country,” says Reichman.
After half-a-dozen discussions for the podcast, Reichman and Coston agree that everyone who’s heard them – engineers, marketing, observers – are thrilled with the level of conversation.
“The insights are incredible,” ranging from superficial but interesting to foundational revelations, says Reichman.
The superficial might be: Do great trial lawyers get nervous? From there, however, the deep dive gets, well, deep. How do they approach nerves? And how do they approach fear of failure? And what role does failure play in this process? And how do you approach the loss or a fear of loss?
And tone of voice. Or voice more generally, how do you find your voice? What voice should you use with a jury? How much does that matter? How much do you try and control that?
The role of authenticity. What's the role of likeability in the whole thing? How do you go about figuring out what a jury needs to hear?
Those are just some of the inquiries Reichman has made. He finds the role of narrative particularly interesting as everyone wants to discuss their methods for constructing a narrative, which he calls “deep psychology, because you can’t just tell a story.”
“What's really interesting is that there is a rich academic literature around the psychology of linguistics and persuasion. Academics who study it, it's like the old tale about the physicist and the pool player,” he says. A physicist will study a pool ball endlessly – angles, velocity, spin and drag – to determine the exact right shot. The pool player? Steps right up and just hits the ball, with no apparent thought.
The trial lawyers are, of course, the pool players.
Behind the Trial will feature the nation’s greatest trial lawyers deconstructing what they know – which to Reichman is exactly what the psychologists are talking about.
“It’s exciting to introduce something new to the market,” says Coston, the marketing mastermind behind McKool Smith. “Behind the Trial isn’t about war stories, chest thumping, or victory laps. Instead, we’re capturing and preserving the voices of some of the greatest living trial lawyers as they walk us through their best practices for presenting to a judge or jury. I think people are going to really enjoy it.”
Stay tuned at Benchmark Litigation for the fascinating series. Links will also be provided at Lawdragon.com and Campus.lawdragon.com.