Too many of us believe that if we do it [in the case of litigators, trying cases] enough, we will become good if not expert at our craft.  Irving Younger preached the 20 jury trial threshold; others have written that 10,000 hours of practice [rehearsal] are the sine qua non of moving on to expert status.  See, e.g., BBC – Can 10,000 Hours of Practice Make You An Expert (last visited 12-3-18).

But research and common sense show otherwise.  Everyone has seen the lawyer who chronically repeats bad habits and who we bemoan by saying “when will she/he ever learn?”  And a recent book makes the point that it is not practice but deliberate practice that makes a difference.

The book is PEAK: SECRETS FROM THE NEW SCIENCE OF EXPERTISE by Anders Ericsson and Robert Pool (Mariner Books/Houghton Mifflin 2017).  Based on studies of musicians, athletes, people who develop the skill of memorizing remarkably long lists of randomly-selected numbers and others, the authors make clear that repetition is not the recipe for significant improvement.

What is involved in deliberate practice and can it be translated to trial advocacy?

At its simplest, especially for lawyers and lawyering, the basic steps are (1) determine the criteria for superior performance; (2) identify the expert performers in the field; (3) learn what makes them perform so well; and (4) identify training techniques that permit you to absorb their lessons and heighten the needed skills.

Criteria, to this writer, should be something beyond win-loss records.  Those may be as much a product of the field the lawyer litigates in, current popular sentiments, and the weakness of the opposition as they are of excellence.  Instead, it is indisputably a skills-focused approach – the best opening, the best, direct examination, etc.

And then?  The authors posit the following as essential steps:

  • Finding a coach or trainer who knows the expert performers’ skills;
  • Taking the practitioner/student outside of a personal “comfort zone” and go beyond “current abilities;”
  • Setting specific goals;
  • A commitment of full attention and concentration;
  • Feedback, monitoring and goal adjustment;
  • Creating “mental representations” of the skill at issue and how best to implement it; and
  • Ensuring that the new/enhanced skills are built upon a foundation of core performance abilities.

PEAK, 98-100.

Deliberate practice ultimately distinguishes knowledge from skill, with the emphasis on recurring performance.  It is not ‘telling’ but ‘doing’ that raises the caliber of the performer.  Drawing from research on continuing education for physicians, the authors note that those programs which involve “some inter-active component – role-play, discussion groups, case-solving, hands-on training” – were the most effective.  PEAK, 134.

The takeaways for lawyers/litigators?  Whether at the Law School level, where [hopefully] deliberate practice is at the core of any trial advocacy class; or once in practice, where CLE programs are the requisite of maintaining Bar status, lawyers need repeated hands-on training.  And for those who litigate, perhaps yet another form of deliberate practice is to take the transcripts from trials and depositions and submit them for critical assessment followed by rethinking and recreating.  Otherwise, we as lawyers are insane, at least as that has been defined  in a quotation often attributed to Albert Einstein: Insanity is doing the same thing over and over again and expecting different results