In the second episode about Rick Friedman's “Becoming a Trial Lawyer: A Guide for the Lifelong Advocate,”host Brendan Lupetin takes a deep dive into Chapter 10. Titled “Forget Playing it Safe,” the chapter argues that there is no safe way to try a case — and there never was. Brendan shares two of his own trial stories: one where going all in on a single theory drew his client's fury before producing a strong verdict and another where the same bold approach backfired and ended in a loss. He closes by reviewing Friedman’s six-step framework for making tactical decisions grounded in your client's best interests, not your own fear of criticism.
Chapter 10 of Rick Friedman's “Becoming a Trial Lawyer” opens with a blunt declaration: There is no safe way to try a case, and tactical decisions will seldom feel safe.
In a case with two viable theories, Brendan went all in on the stronger one after focus groups backed his instinct; his client berated him after opening statement, and he spent the entire trial second-guessing himself before the verdict proved him right.
In a second case, Brendan made the bold call to go all in on "trying the lie" — a doctor whom he believed had written a CYA letter and hidden it in a drawer. It backfired, and he lost. But Brendan leans on Friedman’s philosophy that “in all tactical decisions, you give up something to gain something new.”
Friedman's framework for tactical decision-making includes thinking through the problem thoroughly on your own, brainstorming with partners, focus grouping the issues, and continuing to weigh the pros and cons as the case evolves.
The framework closes on two non-negotiables: Base every decision on your client's best interests and accept that you may look foolish for the choice you made — because if you're not willing to risk that, you have no business being a trial lawyer.
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Brendan Lupetin (:
Welcome back to Just Verdicts. We're going to dive back into becoming a Trial Lawyer, a Guide for the Lifelong Advocate by my hero, Rick Friedman. Trial Guides Publication. Make sure if you don't have this book, you go out and buy it at Trial Guides. I'm not supported by them or anything like that, but it's just a great book and it's really worth owning and purchasing. So chapter 10, Rick's chapter is Forget Playing It's Safe. And he talks about how you can't play it safe strategically and you can't play it safe psychologically. Probably save the psychological part, which is maybe the more important aspect of this for another podcast. We'll talk more strategically today, but they're both super important concepts to keep in mind when you're trying cases, when you're working cases up. And as I'll talk about in a moment, it's important concept to keep in mind in life in general.
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So Rick starts out, he says, "We're all taught from childhood to play it safe in social situations. We're taught not to express opinions that might be controversial or offend others." And so by adulthood, we typically don't express an opinion amongst strangers unless it is of the blandest, most mundane sort, which is why we have such simulating conversation questions like, "How about this weather?" So the way to play it safe in law school, as we all remember, was to raise and explain every possible issue, issue spotting. That was the way that you got the A. So if five arguments supported a particular result, you had better discussed them all or you were not going to get A+ or Cali Award or whatever those awards were that other people in my classes seemed to get. This got me thinking, as I mentioned a moment ago, about the ways in life that while in an effort to play it safe, we're actually hurting ourselves or hurting others.
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So we'll start pretty simplistic and then get into some more heavy stuff in life. So first that comes to mind for me is you want to make money on your money by investing it. And obviously the safest thing to do is put that money in a money market account, bearing 2%, 3% interest rate. And it's a guarantee barely or doesn't even keep up with inflation. And so when you should be taking the quote risk and some would say that there really isn't any risk in investing in say an index fund with historical returns at 10%, people play it safe at the 3% and they wind up losing tremendous amounts of money over the course of their investing life cycle. So next you have those points in your life where people refuse to negotiate salary because they don't want to seem pushy. They don't want to upset the apple cart at work.
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And so they leave their salary, their financial destiny to others. Similarly, never asking for a raise, never asking for a promotion, even though I think there's statistics out there that the people that ask often get something of benefit 60% of the time. And of course the person who never asks gets it 0% of the time. So one could be never having that hard conversation with a spouse, a friend, a sibling, just never doing it. Want to just kind of keep things bland, safe. When in reality, that safe silence is how marriages and friendships can dwindle and die over long stretches of time. Staying in a relationship that's clearly wrong because leaving it scary and devil you know feels manageable. Not telling your kids what you actually think and feel in life because you don't want to burden them or I always kind of false this up to this.
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I want to be cool and you don't want to be uncool in the eyes of your kids. But then over time you risk them not ever getting to know you and then will die. And then you spend years trying to figure out, they try to figure out who you actually were when in fact you could have been having that conversation over all those years. Similar to those as career stuff, staying in the job that's slowly killing you because the paycheck is reliable, you get those golden handcuffs and then time goes by and those handcuffs are all the tighter, you're less marketable and you're depleted and you just never took that chance. So the safe route was the more problematic one. Never starting that thing. It's a business, it's a book, it's a podcast, the side project, because you might fail publicly. As a side note, I started this podcast in part because just wanted to see if I could do five episodes and then do 10 episodes.
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And always interested in the idea of like compounding and would anybody actually download this? I am amazed that by just kind of sticking with this, those numbers have compounded and grown significantly over time, which never ceases to amaze me when I occasionally look at some of those metrics. So just continuing on with a few more of these and we'll get back into Rick's writing, picking that job in life because it was the safe thing to do. Ironically, I'm saying that as a lawyer and that's like the classic, be a lawyer, be an engineer, be a doctor, pick the safe path. While that's great for a lot of people, if the reason that you were doing that was to appease others while it was fine in your 30s, terribly regret causing by your 50s and 60s. I don't mean to be all doom and gloom. It's just, I think these are good analogies to keep in mind, sort of put things in perspective on how this plays out in trial.
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Lastly, just because I think about my kids a lot, you think about how your parenting is going to impact them and we know, but we can't help ourselves hovering over your kids to keep them safe from every tough thing. When deep down, most of us know that overly protective helicopter parenting is just going to produce fragile adults eventually. That sort of helping kids avoid failure and we all want to avoid our kids experiencing bad things robs them of resilience. And then of course, I'm super guilty of this because oftentimes I'll just hand my son a phone when he's having a bad day rather than letting him sit with his thoughts or his feelings, that avoidance of not wanting to have our kids ever be bored. When boredom is oftentimes where their creativity, their self-knowledge, their imagination can develop. So oh, last one I wrote, and I think this is an important one too for all lawyers.
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Saying yes to everything because saying no feels rude. Your calendar fills up with other people's priorities all of a sudden, and the things that matter to you don't get done. Anyway, Rick goes on. All of this training works against you at trial. So all these different things that were socialized or trained or educated to think, issue spotting, what do other people think of you? What would most people do? What is the dog mug? That can really come back to bite you in trial. And so Rick says there is no safe way to try a case. And he's got kind of the snarky point there, unless you're a prosecutor or civil defense lawyer. Now, representing people at trial is not like designing a bridge or flying a plane. Do it right, you have to take risks. The two main ways lawyers avoid these risks are by playing it safe tactically and playing it safe psychologically.
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Although I, that being Rick, believe in all cases, it is mostly psychological risk we safe to avoid. And we'll touch more upon that in a later podcast. So it goes on, you might as well get used to the fact that a tactical decision will seldom feel safe. At trial, we make a series of choices between a series of risky alternatives. That is a big part of our job description, whether we like it or not. In short, your job is to take calculated risks on behalf of your client. You may be certain you are making the right tactical choice, but I doubt you will ever feel safe. If you want to feel safe, find another job. I'll give you three quick examples from trials where I took tactical risks and sort of how they turned out and they run the gamut. So tried a case, there was two viable theories that had been pled.
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I focused, grouped them, I thought through them, I discussed them, and the one theory was clearly the winner and the other one from a jury perspective was a loser. And so with the information I had, I decided to go all in thinking about this book actually on that one theory. I could have done both to play it safe, but I said, no, this is the theory that's going to win this case or that could win this case. And I went with that theory. And after my opening statement, my client berated me, upset that I hadn't addressed both of the theories. And I tried to explain that I had good reason to do that. I had focus groups that backed me up, but that did not satisfy my client and they were very upset with me. Fortunately, the case turned out with a very good verdict, I think because I stuck with my guns there, but it was not a pleasant or easy feeling.
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And throughout the course of the trial, I was honestly thinking to myself, "Did I do the right thing? Did I make a big mistake here?" So that's number one. Number two had a trial where I felt the doctor was lying. There had been a series of phone calls about a medical event occurring over the course of a weekend and came to find out in the course of discovery that when this doctor who had been communicating with this patient over the course of the weekend found out sort of the devastating nature of what wound up happening in the days afterward, that he went and wrote from my point of view, a CYA letter. And instead of putting that note, which was basically a medical record in the patient's medical record, and this of course was a very self-serving statement, but it had a lot of weird stuff in it that just really made the doctor look very incredible in my mind.
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He just left it in his drawer. So I made the tactical decision that I was going to go all in on "trying the lie." And unfortunately it backfired. I was probably too heavy-handed. There was probably a better way that I could have approached the way I tried the case, but I had made a decision that that was the best way that provided us the greatest chance of winning and I was wrong and we lost that case and it was a very painful pill to swallow. So all these things are things to keep in mind when you're trying your case, there is no perfect solution. You go with what you believe in your heart is the right decision. So Rick continues on. In all tactical decisions, you give up something to gain something else. When you make these decisions, there is no safe route. In hindsight, you may have made the wrong decision, or you may have made the right decision, but things still went wrong, and you may have made the wrong decision, but won the case anyway.
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As aside, there's a great book on decision-making by Annie Duke, and she talks about this concept mostly as analogous to poker of resulting, result thinking, and that you cannot let the outcome be the indicator to you of whether you made the correct or incorrect decision. So you can make lots of mistakes and win a case, and that doesn't mean you try a perfect case, and you can do all the correct things and still lose the case. And that doesn't mean that you did not approach that case with the best possible legal acumen that you could have. So Rick finishes, there's no safe decision. They all involve risk, risk of hurting the case and risk of incurring others' criticism. There is no way around this. It is your job. This is not to say that you should not ask for advice or consider conventional wisdom when confronting tactical choices.
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What it does mean is that your very human desire to insulate yourself from criticism has no place in your tactical decision making. And I think doesn't that kind of ... If you're at all like me, I really struggle with criticism, always will to some extent. And so when that is that kind of a guardrail on how you're deciding how to try your case is, what will other people think? Will I get criticized by my client, by my defense counsel, by people that sit and watch the case or hear about what I did during the trial? That can be a very powerful and influential effect on us that we have to try to put aside and do the best that we can. So wrapping up, and this is sort of Rick's process for how to make the best decisions possible as a trial lawyer. So it says, when you make tactical trial decisions based on how you will look to others, you are selling out your client to protect your own ego.
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Big mistake. So then he says, "What should you do when making tactical decisions?" Number one, think through the problem thoroughly on your own. So just sit with it. And I think any obsessed good trial lawyer just naturally sits with the big topic issues on their mind all the time in the shower, falling asleep, waking up, driving to work, driving home from work, any blank moment, those ideas are turning over in your mind. Number two, brainstorm with your friends and partners to come up with as many courses of action as possible. I think that's always great. The more that you can talk about it, put pen to paper, articulate the thoughts that are rattling around your head, the better. And of course, a subpart to that that I would say is do focus groups, focus group those issues. See what regular people think about it to get a sense of is the way I'm thinking this the way that most other people think about it or not.
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Number three, weigh the pros and cons of the choices. Number four, continue weighing the pros and cons as the case evolves. One thing I'll say on this, and I can't think off the top of my head what a good example in trial would be, I think it was Jeff Bezos has talked about from a decision making that decisions are either two-way doors or one-way doors. So meaning that there are some that you can sort of undo the damage and there are others that you cannot. So those would be the one-way doors. So if it's a, just from a timing perspective and stress perspective, these are decisions that are reversible or can be made and not cause too much damage, you should make those questions very quickly and not put as much thought and concern into them. Whereas if they're one-way door type decisions, things that you will not be able to change, you're just not going to be able to reverse it or go back.
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Those are the decisions. And sometimes I think there's very dispositive issues in trials. Those are the issues that you really have to take time, focus group, talk with people before you also make the decision. And then number five, Rick says, when you have to make a choice base it on what you believe is in your client's best interests, your job is to take calculated tactical risks on your client's behalf. That should always be paramount as part of this. And number six, and lastly, accept the fact that you may look foolish for the choice you made. That is your job. If you're not willing to risk looking foolish, you have no business being a trial lawyer. And that's a little bit harsh, but that is true and something that you just have to live with as a trial attorney and accept it as an occupational hazard.
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So I hope this gives you some food for thought, both in life and in the practice of law. And I hope it just kind of makes you think through that. And maybe also gives you a little bit of peace of mind when you are struggling over some big decisions or many different decisions on how to approach this and what's the right thing, what's the wrong thing in your next trial. So thanks as always for listening to the Just Verdicts Podcast. I'm your host, Brendan Lupetin. And until next time when we talk more about becoming a trial lawyer, because I love it so much, be well.
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If you enjoy the show, please subscribe to the Just Verdicts Podcast on your favorite platform and consider leaving a review. And if you're interested in co-counseling, local counseling or referring a catastrophic injury case, we'd love to work with you. Call us at 412-281-4100 or visit our attorney referral page at pamedmal.com/refer. Thanks for listening.
