Washington Lawyer - January/February 2022 - 34

ON FURTHER REVIEW
Thriving in Uncertainty
By Lloyd Liu
A
s trial lawyers, we place
a lot of emphasis on projecting
confidence because
confidence suggests rightness.
Although self-assurance is
important, we can't be blind to the
ways we might be wrong, or our
plans can go awry.
The reality is that trials are riddled with uncertainty,
even for the most skilled trial attorneys.
In fact, sometimes a quality that distinguishes
the best trial lawyers is their ability to manage
what they do not know.
There's a saying that goes, " The further from
shore, the deeper the ocean, " and Sara Kropf, a
founding partner of Kropf Moseley PLLC, knows
this from years of experience defending both
companies and individuals under investigation
by the government.1
When contrasting where
she began to where she is now, she says, " I was
never more sure of myself than when I just
started practicing law. I've spent a lot of years
practicing, and I feel like I know less and less. "
Her honesty about what she knows and
what she doesn't shouldn't be confused for
weakness; it speaks to her seasoned judgment.
Having insight into what you don't know is
essential to helping clients navigate uncertain
waters. Regularly questioning yourself is a
critical component to informed decision
making. This is because, as Kathryn Schulz of
the New Yorker wrote in her book, being wrong
" feels like being right. " 2
Yet there is, with all trial
lawyers, a need to project confidence - a performative
aspect discussed in a prior column.3
So, the question becomes, how does one
acknowledge great uncertainty while still maintaining
composure?
Kropf largely credits Bill Jeffress, her colleague
while she was at Baker Botts LLP, for her ability
to remain calm in the face of the unknown.
" I probably have a style more like Bill's, " says
Kropf. " He got into the courtroom and looked
visibly relaxed. I never ever feel relaxed, but Bill
just had it. He has this sort of calmness, taking
everything in stride. In criminal cases, people
say or do things you aren't expecting, and so it
can be hard to not react. But Bill taught me to
stay completely calm. "
Kropf describes this as " being a paddling duck,
nice and calm above the water, but underneath
I'm paddling like crazy. " She admits that she
doesn't always feel composed, but she hopes
she comes across that way.
Kropf and I also talked about the challenges
lawyers face in parsing out the weaknesses in
their cases and how they become attached to
their cases. Some say attorneys ought to avoid
falling in love with a case because it impedes
their ability to see the weaknesses of their side.
Kropf, however, has a slightly different take on
this conventional wisdom.
" I always fall in love with my cases. I view it as
coming across as credible - not in the sense of
coming across as crazy, like saying the sky
is red rather than blue, but to really believe in
[my] case and getting the jury to believe in it,
too, " Kropf says. " I need to have a level of belief
in my case in order to get up and advocate the
best way for my client even if my case is not as
strong as I'd like. I come up with the best theme
possible. "
That is not to say lawyers should be ideologues.
Kropf believes in the importance of
pressure-testing her ideas - checking her
blind spots - notwithstanding the passion
she might have for her cases. The natural
question is how attorneys actually go about
doing that. In the past, Kropf has brought in
trial consultants to help talk through themes
34 WASHINGTON LAWYER * JANUARY/FEBRUARY 2022
and figure out what makes sense and what
doesn't. She also came up in a firm environment
that valued informed dissent, and she
fosters it in her own firm. Opposing views are
essential, and Kropf finds junior lawyers to be
invaluable for this.
" I have been trying to make sure I ask our associate
what she thinks first. It's really hard for
experienced lawyers to not jump in and tell
you immediately what they think, " she says.
This is a classic, perhaps underused, practice
to test implicit though potentially misguided
assumptions.4
Fielding other opinions first is something that
takes practice, Kropf says. " When it comes to
trial, I'm pretty open to other people saying
'this doesn't work.' Listening to other people
criticizing my case is still a challenge, but I'm
excited to have young lawyers push back on
this stuff. They're going to have ideas that are
more creative that I haven't thought of. I want
them to be unafraid to express them. "
Lloyd Liu is a partner at Bennett LoCicero & Liu LLP,
where he focuses on white-collar defense, govern -
ment investigations, and civil litigation.
NOTES
1 Kropf writes a blog (grandjurytarget.com) that
really is a trove of good stuff. It's recommended for
experienced white-collar practitioners as well as
those who might be aspiring to enter the field.
2 Schulz, Kathryn. Being Wrong: Adventures in the
Margin of Error, Ecco/HarperCollins, p. 18.
3 " Persuasive Storytelling Tenets for Lawyers, "
Washington Lawyer (November/December 2020).
4 The articles on how to manage the unknown or
even " unknown unknowns " are legion but still
worth reading. See, e.g., Dorie Clark, " Simple Ways
to Spot Unknown Unknowns, " Harvard Business
Review (Oct. 23, 2017), hbr.org/2017/10/simpleways-to-spot-unknown-unknowns.
http://www.grandjurytarget.com https://hbr.org/2017/10/simple-ways-to-spot-unknown-unknowns https://hbr.org/2017/10/simple-ways-to-spot-unknown-unknowns
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