Six tips from Benjamin Franklin for lawyers
Mentoring should be a mission for judges and lawyers. Nothing can be more satisfying than helping a law student or young lawyer learn the ropes of being in court, handling evidence, and dealing with lawyers, judges and juries. For the past 14 years, I have selected five externs from different law schools to work with me in my unlimited civil court in the Stanley Mosk Courthouse. They research motions, observe trials, and assist me in presenting educational seminars for judges, lawyers and other law students. Giving back through education is something that both helps the law students and enriches me, by allowing me to recall and share the many lessons I have received from countless great lawyers and judges who have assisted me along the way.
What if we don’t have mentors to teach us in person? What if a young lawyer or law student hasn’t found that perfect mentor to guide him or her? This question produced a summer project where I have assigned my externs to pick a person from history whose life and words could inspire them; words so illuminating and relevant that they could be brought into court and used to draft trial strategy and to help craft closing arguments. Even if the precise words weren’t used, the spirit of these “ideal mentors” would serve as an inspiration to future trial lawyers when the need arose.
My inspiration for this project was Charlie Chaplin, the silent comedian, whose work embodied all of the qualities I emulate: spirited, creative, and always possessed with a unique perspective of the world with which people could identify. I have spent countless hours watching his films at the Silent Movie Theater in Los Angeles and have read everything I could about him. When I was ten years old, I wrote him a fan letter and included a number of drawings I had done of him from his films. I didn’t have his address, so I simply put a stamp on an envelope addressed to Charlie Chaplin, Geneva, Switzerland. About a month later, I received a kind response from Charlie Chaplin on his stationery in his handwriting, thanking me for the letter and telling me how much he admired my drawings. That letter has stayed close to me to this day, inspiring me to strive for Charlie Chaplin’s creative brilliance, his artistic integrity, and his ability to move others.
The first of the ideal mentors selected, Benjamin Franklin, has every quality a lawyer should have. He was a hard worker: a successful businessman who retired at 42. He was a tireless writer, constantly articulating his unique view of life. He would often write two editorials on the same topic, each with a pseudonym, each taking the opposite position on an issue. This is exactly what a good lawyer should do, always be prepared to argue and understand both sides of an issue. Even though he barely had a grade school education, he didn’t allow his lack of special training to stop him. He was an inventor, creating what we now know as the Franklin stove, bifocals and the lightning rod. He is also credited with creating the country’s first public library, post office, fire department, police station, insurance company, and hospital.
Benjamin Franklin also maintained his sense of humor and interest in all things. Whether contributing to drafts of the Declaration of Independence, publishing books and articles or even giving advice to a young man about the advantages of selecting an older mistress over a younger one, Franklin was fully engaged in every aspect of life. This interest in every aspect of human life was seen in his views on everyday issues about the art of living, to breathing life through carefully crafting words to ensure that our country’s foundational beliefs became the law of the land. His approach can be seen in a number of successful lawyers who can argue in court sophisticated legal issues yet still show an interest in the lives of the people he or she represents as well as the jurors who make the final decisions. Among the hundreds of quotes from Franklin that could have served as vital lessons, the following are six that can be readily applied for trial lawyers.
Lesson One: Learn from your harshest critics
“Love your enemies, for they tell you your faults.” This is a quote from Poor Richard’s Almanac which Franklin published in 1732. It is filled with helpful wisdom and maxims spoken through the words of a fictional character he created named Poor Richard Saunders. This maxim differs from most wise sayings because it appears to speak in contradictions. President Clinton would quote this Franklin phrase on more than one occasion during the scandal involving Monica Lewinsky that would lead to his impeachment hearings. President Clinton acknowledged that we can all learn from our harshest critics. Our friends and flatterers tell us what we want to hear but give little insight into how the world evaluates us. Our friends might hint at our flaws or simply ignore the flaws; what you would expect a good friend to do. Our enemies and critics have no such filter. What they say, like it or not, we can learn from. In a courtroom setting, what I mean by “enemies” is usually the opposing side, a judge who rules against you, or an appellate court that agrees with your opponent. If lawyers could take a moment and try to find the lesson learned from adverse rulings, they could learn more than they could from their friends. In that sense, often our enemies or detractors can do us a favor because they keep us sensitized to our weaknesses and allow us to learn from our mistakes.
Lesson Two: Focus on the jurors’ values
Poor Richard has some cogent views about education: “Tell me and I forget. Teach me and I remember. Involve me and I learn.” How we involve jurors and get them to understand our points is a goal that Benjamin Franklin understood. In our careers, the best lawyers are those who actively involve the jurors in his or her cases. Focusing on that last phrase, “involve me and I learn,” reveals a clue. In traditional learning, this translates to dividing large groups into break-out groups of individuals who work together, solve problems and, thus, teach themselves. In court, of course, lawyers are limited by the constraints of the courtroom where words and visual aids have to give the jury the tools to teach each other in the jury room. A lawyer can help the jury by employing a lesson from Aristotle’s Rhetoric. A classic speech is composed of logos or logical arguments, pathos or an emotional appeal (limited by Evid.Code, § 352), and ethos or core values that establish the speaker’s credibility. Those core societal values reflect general principles with which all jurors can agree upon. Here are two examples: we all deserve to live in a safe environment and we should expect our government not to unreasonably infringe upon our rights; these are values that establish your case’s credibility as well as your own credibility. By focusing on ethos, you are creating for the jury a reason to believe your position because you are reflecting the jurors’ values. These ethos values are usually incorporated into a theme and can be a phrase or a word.
A perfect example of ethos in politics was the iconic red/blue poster in 2008 of Barack Obama along with the word “hope.” This wasn’t simply a promise of a politician, this was a value that each of us considers important: hope. Franklin teaches us that we must involve our jurors by focusing on the core values of a case so that they will become involved and be motivated to uphold those values.
Lesson Three: Always focus on your clients’ interests
The third lesson is also taken from Poor Richard’s Almanac: “A lean judgment is better than a fat award.” So often people fight over a judgment that is ultimately worthless or worse, prolong litigation until it resembles a modern-day Bleak House. The concept of a pyrrhic victory is something I see in court all the time but lawyers often only grasp the devastating effect after the fact. So often I see the furious work that lawyers expend for a paper-thin judgment which is worthless for anyone except perhaps an accountant desperate for losses at tax time. Settle early. Carefully consider the expenses of winning a case versus settling a case and stopping the hemorrhaging of litigation expenses. We don’t live in a loser pays litigation world like England. In our country, generally the winner and the loser both pay, sometimes dearly, for victory and defeat. Make sure the price of litigation is worth it.
Lesson Four: Reputation is everything
On the subject of reputation, Poor Richard states: “It takes many good deeds to build a good reputation, and only one bad one to lose it.” Our reputations travel with us, and many lawyers acquire clients and originate business for their law firms based solely on their reputations. The better your reputation, the more your phone will ring with business. However, one bad decision can destroy a lawyer’s reputation forever and take everything away that he or she has worked so hard to build.
When I speak of reputation, I am talking about a lawyer’s own actions that reveal reputation, not the hurtful comments people might say about the lawyer. No one can control what others say or write or clog the Internet with.
A person can control two things, how he or she behaves and whether or not that person will let negative remarks affect them. We live in a world where all judges are painfully aware that every time they rule, they make at best a temporary friend but also make a lifelong enemy. Judges and lawyers both know that negative comments can be spread by individuals who use computers like adolescents in cyberspace, typing out their frustrations from a safe distance. Those who challenge judges through one-sided attacks know that judges are unable to respond, making it appear that the Internet vitriol is the last word. But they don’t have the last word. A judge or a lawyer has the last word by his or her own conduct. Reputation is everything, but thankfully we have control of our reputation by what we do.
Lesson Five: Don’t waste anyone’s time
Poor Richard also teaches us that “lost time is never found again.” Many lawyers’ most valuable assets are billable hours. But the time of the people who are in court is equally valuable and is precious to the jurors, courtroom staff, witnesses and the court. This quote is a reminder of how precious our time is and how important it is not to waste time as lawyers. In a courtroom, jurors are missing work or missing time with their families. It is important to respect others’ time.
Lawyers can do that by writing out their opening statements, examinations and closing arguments. Make good on time estimates. Lawyers should rid themselves of the notion that the lawyer who speaks longest wins. I have rarely seen that hold true.
I would analogize the issue of conserving time to that of comedians on stage and appellate lawyers appearing in an oral argument. In both cases, each has a set time and when the red light goes on, the set and the argument end. Trial lawyers should heed this lesson and be aware that dominating another’s’ time is not dominating the case. Be the type of lawyer who is prepared, keeps to the time limits, and doesn’t waste the jury’s time repeating questions to a witness. I can’t count the number of times I have received a note from a juror in trial who asks why a lawyer keeps repeating the same question to a witness. Use the golden rule in considering the time of others as important as your time.
Lesson Six: Cultivate charm
Another gem from Poor Richard’s Almanac: “A spoonful of honey will catch more flies than a gallon of vinegar.” Benjamin Franklin had a quality we all secretly strive for but would be hard pressed to find in a textbook. Benjamin Franklin was charming. During the Revolutionary War, Benjamin Franklin was a Minister to France along with John Adams representing the American colonies. Benjamin Franklin convinced France, a financially strapped country, to loan money and provide other sup-port for the colonies’ fight for their independence through his dining, stories, and “charm.” Unlike the more somber John Adams, Franklin spent most of his time listening to and communicating with the people of France. Without negating the great acts of dedicated people in the United States, it is generally believed that Franklin’s securing of money and other support from France was a decisive factor leading to the colonies’ success in the American Revolution. While a lawyer could learn from all of Franklin’s attributes, his genuine interest in people and his enthusiasm for involving himself in the lives of others may be the best lesson a lawyer needs for being successful in court and for winning the respect, admiration, and support of the jurors and judges who make the important decisions. Keep Benjamin Franklin close at hand, for his words could be the Ideal Mentor leading you to success.
Judge Gregory W. Alarcon has been a judge for over 28 years. Before that, he was a deputy attorney general for the State of California, a deputy district attorney for Los Angeles County, and an assistant United States Attorney for the Central District of California. Judge Alarcon received a J.D. from Loyola Law School in 1981 and a B.A. from UCLA. For the past 28 years, he has been an adjunct professor at Pepperdine University School of Law teaching trial practice and related subjects. He is also active in training and educating new judges and teaching ethics to all judges throughout the state. He is a frequent lecturer on various topics on trial issues including subjects such as “Lessons from Landmark Trials,” “Judicial Personalities,” “Creative Solutions for Keeping and Motivating Jurors,” “Coping With Judicial and Lawyer Stress,” “Civility in Court,” “Hamlet for Lawyers,” “Ideal Mentors for the Courtroom,” and many others. He has written numerous articles on legal issues for lawyers and judges. In 2013, Judge Alarcon was given the 2013 Constitutional Right’s Foundation “Judge of the Year” award and a Judicial Excellence award from the Mexican American Bar Association.
by the author.
For reprint permission, contact the publisher: Advocate Magazine