The next to last Keynote at Filevine’s LEX Summit was a big one. It featured an interview of the renowned lawyer Alex Spiro by Ryan Anderson, CEO of Filevine. Two high-powered individuals sharing the stage.
Spiro has tried countless high-profile cases including defending the actor, Alec Baldwin. He’s also represented Elon Musk, the mayor of New York, Jay-Z and countless others.
I wasn’t sure what to expect from such a high powered honest to God trial lawyer. Would he be full of himself? Flashy? Glib?
He was none of those things. From the moment he took the stage he exuded a quiet confidence and took command of the venue. He wasn’t humble but he wasn’t a braggart. You could tell instantly that this was a lawyer who would control the courtroom and the jury. There was something about his demeanor, the way he comported himself that clearly said this is not a person to be fucked with.
He is not afraid to do the unpredictable.
Two Key Things
But there were two things he said that really resonated with me as a former trial lawyer. The first was that he tries to be unpredictable. He tries cases in unpredictable ways. He is not afraid to do the unpredictable.
Being unpredictable means that he doesn’t try cases by the book. He doesn’t read trial manuals. He told us the standard advice never ask a question you don’t know the answer to was “pure bullshit.” Why? Because sometimes you don’t care what the answer is among other reasons. He constantly thinks of new ways to do things. That keeps the other side off guard and frankly fearful of what he might do next.
But he offered one additional insight to being unpredictable: only do something unpredictable if you can walk it back. You need to know and have an escape route when and if you need it.
My Mentors
My mentor as a younger lawyer was exactly the same way. You never knew what Carl would do or say in or outside the courtroom. As he used to put it, “ I don’t let anyone define me. I define myself.”
I tried cases with another lawyer who was the same. Adversaries feared and respected these lawyers precisely because they did not do things by the book. And since their adversaries typically did do things by the book, they were flummoxed by different strategies. They had no idea how to response to the unpredictable. It wasn’t in their playbook.
Spend time figuring out what a case is really about
One More Thing
The second thing Spiro told us that resonated was the need to spend time figuring out what a case is really about to come up with the right theory and strategy. He gave as an example the Alec Baldwin case. The prosecutors tried to make it all about a careless actor firing a gun and killing someone. Spiro’s theory was different. He thought the case was really all about where the bullet in the gun came from and why it was there. After all, in every action movie actors shoot constantly at one another. They toss guns around. No one gets hurt, no one really gets shot. So why and where did the bullet in the Baldwin incident come from? Making the case about the bullet led to Spiro’s discovery that the prosecution committed the ultimate no-no: they hid evidence about the bullet. The result: the case was dismissed for prosecutorial misconduct.
Define the Case
I used the same approach. I had several cases involving catastrophic fires where the defendants all pointed to each other and tried to escape blame by pointing fingers. But we made the case all about the building owner who controlled the facility and could have prevented the event. It changed everything.
Another case involved the collapse of an outdoor stage. Other defendants argued the case was all about the negligence of one another. I thought the case was about a freakish weather event no one could have predicted. A superseding intervening cause if you will.
Great lessons. They served me well.
AI: a Blessing or a Curse
Here’s where AI is a curse not a blessing. There’s lots of talk about how it will let us all do more strategizing and thinking. There’s lots of talk about how AI will give us time to enhance strategic thinking.
I fear that younger lawyers (and lazy older ones) will over rely on GenAI and become predictable, plodding and unoriginal
But there’s a danger of over-reliance: using AI too much does just the opposite of making you unpredictable. The whole concept of AI and LLMs is being predictable. Predicting the next word or phrase. That makes you and your arguments, yawn, formulaic.
I’ve seen lawyers start their thinking about their case by going to ChatGPT and asking it for the best themes of a case. What you get when you do that is a lot of standard and often wrong themes. Certainly, you can ask ChatGPT to help brainstorm. But it’s not the be all and end all. And I would say it’s not even a starting point.
Ironically, the other side may be using GenAI in exactly that way and getting similar results. Making them as predictable as the rising of the sun every morning.
The second danger is related. As I have discussed before, reliance on AI risks not thinking for yourself. Not doing the critical thinking. Not starting a case by, as my mentor used to say, looking out the window at the river until you figure out what the case is really about. Spiro didn’t figure out what the Baldwin case was really about by asking ChatGPT, Claude or Perplexity. He sat and thought until he figured it out.
As I and others have discussed, I fear that younger lawyers (and lazy older ones) will over rely on GenAI and become predictable, plodding and unoriginal.
In addition, the fact that we don’t try many cases anymore also tends toward sameness. Taking a six hour deposition involving countless documents doesn’t necessarily sharpen your skill to perform in front of a jury. Make no mistake, when you try a case you are performing. AI-generated arguments all sound the same to a jury.
Sitting on the Edge of Our Seats
And by the way, after I thought about it, the reason Spiro was so imposing during the Keynote? You could sense that there was no telling what he might do or say next. That in and of itself kept you on the edge of your seat. A damned good skill to have in the courtroom
What’s the Answer?
We have to come up with ways to emphasize to younger lawyers the value of thinking like mavericks. We have to make them think critically about what each case is really about. We have to encourage them to try to do this. The reason my mentor picked me to be his wing man was because I thought unpredictably, I tried to see things others didn’t. He encouraged me: he once said, Embry you have 25 ideas every day. Every now and then you have a good one.
The blunt truth is that those younger lawyers that acquire these skills will be head and shoulders above everyone else while their peers are asking ChatGPT or some trial manual what to do next.
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