Washington Lawyer - January/February 2020 - 41

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Trial work remains a uniquely human
endeavor, one still driven in large part by
anecdotal experience. It is filled with biases,
strong feelings, and ritual that are being
challenged daily by social sciences and
larger data sets.
overwhelmingly strong facts - a case that
would likely prevail regardless of who was
trying it. In such instances, there isn't a natural
feedback mechanism to tell you whether what
you're doing is effective or not. You just win.
And in those circumstances, it would be
natural to think that what you're doing is effective rather than a product of something else.
If you encounter a string of those situations,
it would reinforce the belief that your strategy
is productive when maybe it isn't.
Trial work remains a uniquely human endeavor,
one still driven in large part by anecdotal experience. It is filled with biases, strong feelings, and
ritual that are being challenged daily by social
sciences and larger data sets.3 Bill's point about
the difficulty in assessing one's own tactics
speaks to more recently accepted notions of
confirmation bias and related biases.4
And in a related vein, I asked Bill how younger
lawyers can improve their trial skills. He emphasized an underlying theme: humility in the face
of all the variables in litigation.
Young lawyers have tremendous confidence,
but they need to be aware that something
could go wrong, and they need to plan for
that. When I first started practicing law, one of
the things that I was told early on by a lot of
senior lawyers was, "Don't count on that."
Even though you think all the evidence is on
your side, even though you think you have the
greatest witnesses in the world, don't plan on
everything going right. Something's going to
go wrong. You need to accept that, and you
need to be prepared for it. And I think that

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there are a lot of very well-educated, wellequipped young people who are practicing
law. They've got great skills. They've got great
confidence, but they're not accepting the fact
that something could go very wrong.
Well said.
Lloyd Liu is a partner at Coburn & Greenbaum PLLC
where he focuses on white-collar defense,
government investigations, and complex civil
litigation.
NOTES
1 John Balestriere, "If You Are Not Really a Trial Lawyer,
Do Not Try to Be One," Above the Law, abovethelaw.
com/2018/09/if-you-are-not-really-a-trial-lawyer-donot-try-to-be-one.
2 Sam Roberts, "Jacob A. Stein, an Eminence Among
Washington Lawyers, Dies at 94," The New York Times
(Apr. 11, 2019), nytimes.com/2019/04/11/obituaries/
jacob-a-stein-dead.html.

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3 This is a subject for another time, but former
Judge Alex Kozinski of the Ninth Circuit wrote a
comprehensive preface in the Georgetown Law
Annual Review of Criminal Procedure that challenged
a lot of basic assumptions underlying trials (e.g., the
reliability of eyewitness identification, the fallibility of
confessions, and the reliability of human memory).
It is a compilation of some longstanding ideas
and some newer ones. Despite the circumstances
surrounding Judge Kozinski's resignation from the
court, the article remains a powerful collection of
ideas. Alex Kozinski, "Criminal Law 2.0," 44 Geo. L. J.
Ann. Rev. Crim. Proc. (2015).
4 Daniel Kahneman's bestseller, Thinking, Fast and Slow,
is a good primer on these ideas and dovetails with
Judge Kozinski's piece noted above.

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WASHINGTON LAWYER 41

https://abovethelaw.com/2018/09/if-you-are-not-really-a-trial-lawyer-do-not-try-to-be-one/ https://abovethelaw.com/2018/09/if-you-are-not-really-a-trial-lawyer-do-not-try-to-be-one/ https://abovethelaw.com/2018/09/if-you-are-not-really-a-trial-lawyer-do-not-try-to-be-one/ https://www.nytimes.com/2019/04/11/obituaries/jacob-a-stein-dead.html https://www.nytimes.com/2019/04/11/obituaries/jacob-a-stein-dead.html https://www.osioffices.com

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