A Black Swan Inspired Theory of the Case


When I was a summer associate after my 1L year, all the way back in 2014, I was called into the National Co-Chair’s office for an assignment. After informing me that he’d taken a new case, he explained that there are three fundamental concepts that a lawyer must determine, yet constantly hone and redevelop, at the start of each litigation: strategy, tactics, and theory of the case. The last concept is my focus today.

            This familiar idea, constantly revolving around the litigation process, is simple, yet difficult to pinpoint in any exactitude. While there is much commentary in law reviews, legal journals, and the web on the concept, I had not delved into it rigorously, or really understood it well, until it was explained thoroughly in the book Successful Civil Litigation by George Vetter. It was only upon reading Vetter’s book that I realized its importance and how it may be achieved. However, it was only after reading Black Swan by Nassim Nicholas Taleb that I understood why.

The Theory Explained

            Before I explain the reasons why the theory of the case is successful in litigation and at trial, its important to understand exactly what the theory is and how it is achieved

            The theory of the case is simply a detailed, coherent, accurate story of what occurred, and it should tell your client’s story logically, and in a concise manner. Once correctly constructed, it will help communicate a compelling story to potential jurors. And it is this story that will nudge the jury to accept one party’s portrayal of various disputed inferences—based on undisputed facts—so that a favorable result is reached.

George Vetter’s six hallmarks of a “Winning Theory”:

  1. It must have a firm foundation in strong facts and allow fair inferences to be drawn from the facts;
  2. The theory should be built around the so-called high cards of litigation, incontestable or virtually incontestable facts, such as self-certifying documents, patently undoctored pictures, admissions against interest, the testimony of independent witnesses, clear scientific facts, and so on. The principle behind this rule: the jury reconstructs what happened from the evidence. Often the evidence is in sharp conflict. Naturally, then, the jury will seize upon the facts that seem fixed and certain and true. These facts then serve three functions. They, themselves, become part of the foundation for the jury’s reconstruction. They become the means by which the jury tests other facts and inferences. And they become the basis for the inferences;
  3. The theory should not be inconsistent with, or fly in the face of, incontestable facts;
  4.  The theory should explain away in a plausible manner as many unfavorable facts as it can;
  5. The theory should be down-to-earth and have a common-sense appeal. It must be readily acceptable by a jury; and
  6. The theory cannot be based on wishful thinking about any phase of the case.

            Thus, a theory with these components serves evidentiary functions, discredits and explains away the opposing sides telling of the facts, and allows the jury to follow along so that a logical result is reached. It is this last function that I find interesting: why does a logical narrative play such a dynamic role in persuading the jury; if the evidence is there, the burdens are met, why do we need simplicity, narrativity, and logical story-telling to reach the conclusion? This is where Taleb’s concept comes into play.

Nicholas Nassim Taleb’s Narrative Fallacy

               The Narrative Fallacy concerns our susceptibility to overinterpretation and our preference for compact stories over raw truths. Our preference for narrativity effectively distorts our perception of the world, and this becomes particularly problematic when ascertaining and understanding events—in his book, Taleb was chiefly concerned with Black Swan events, which are unpredictable occurrences with enormous consequences that are inappropriately rationalized after the fact.

            Narrativity does this by integrating facts into a logical link, or an arrow of relationship. And while this appears useful, it becomes a problem when organizing facts this way increases our impression of understanding and simplifies the world, thus skewing our perception of Black Swans and events of wild uncertainty. Here is a simple example of the fallacy from the book:

            If I asked you how many cases of lung cancer are likely to take place in the country, you would supply some number, say half a million. Now, if instead I asked you many cases of lung cancer are likely to take place because of smoking, odds are that you would give me a much higher number (I would guess more than twice as high). Adding the because makes these matters far more plausible, and far more likely.

            Thus, adding causality to the equation and crafting a narrative can unjustifiably affect our understanding of facts. But for my purposes, in explaining the theory of the case, the narrative fallacy is an excellent tool of which to take advantage.

            Weaving together facts and conveying an arrow of relationship in litigation is critical because it not only makes the facts more memorable but also helps them make more sense. Taleb explains a few neurochemical and psychological reasons for why human organize information in this way, but, fundamentally, it has to do with retrieving and storing new information in our mind: “the more orderly, less random, patterned and narratized a series of words or symbols, the easier it is to store that series in one’s mind or jot it down in a book.” Therefore, narrativity helps us store information in a memorable way.

            Another interesting side-effect of the narrative fallacy is that once a narrative is established, our minds work activity to solidify that narrative. We tend to more generously remember those facts from our past that fit our narrative, “while we tend to neglect others that do not appear to play a causal role in that narrative.” We revise these causative narratives involuntarily and unconsciously and re-narrate in a way that conforms with the already-established narrative.

            Accordingly, one party’s production of the best evidence, the most effective direct and cross examinations, and the greatest demonstrations at trial may not play that persuasive of a role, so long as the opposition tells a more compelling causal narrative that explains how the events occurred in a logical and plausible matter. And once that narrative is established, the judge and jury will constantly find facts and evidence that support that narrative, and do away with those that don’t. In other words, trial may over before all the evidence even comes if during Opening Statements one party establishes the type of narrative Taleb highlights.

            Taleb provides a method for side-stepping the ills of the narrative fallacy, which is to “favor experimentation over storytelling, experience over history, and clinical knowledge over theories.” But when advocating your theory of the case, flip those prescriptions on their head and create the most plausible, logical, arrow-like narrative you can. The judge and jury will be at the mercy of their cognitive predilection for narrativity, and you will be well on your way to litigation success.

 


Becoming a Craftsman: A Book Review and Analysis of “So Good They Can’t Ignore You” by Cal Newport


So Good They Can't Ignore You

A constant theme on my blog posts is skill development as it pertains to your professional career. Two book reviews in harmony with that theme were “Deep Work,” by Cal Newport, and “Peak” by Anders Ericsson. Those two books are intertwined with the book I’m reviewing today, and while the former writings provide the detailed methods for obtaining a satisfactory career, “So Good They Can’t Ignore You” provides the blueprint.[1]

Peak and Deep Work dealt with the ways we develop Career Capital, which is defined as a description of the skills you have that are rare and valuable to the working world. So Good is the book that develops what Career Capital is and why it is so important to achieving a compelling career. But before I delve in the details, I’ll entertain one of the primary refutations in this book: the fallacy of the pursue your passion mindset—i.e., picking your passion and then developing a career around that passion.

Steve Jobs popularized this career-guiding framework during his 2005 Stanford Commencement Speech. Newport says this advice has everything backwards: you must first create skills that are rare and valuable, and it is from acquiring these skills that passion follows. Moreover, follow your passion advice can be harmful because you set such a high standard for yourself—inevitably an unattainable one. The focus is on what the world can do for you, not what you can do for the world. And this mode of thinking neglects developing rare and valuable skills, which is the ultimate good here.

The alternate mode is the Craftsman mindset. The logical chain of the Craftsman mindset is as follows: (1) You develop career capital through deep work and deliberate practice; (2) you use this career capital to acquire valuable and deserving traits, such as autonomy, control, and mission; and (3) as an outgrowth of this progression, you become passionate towards a mission, and find ways to expand your mission in new ways.

So first, the Craftsman focuses not on passion, but on honing rare and valuable skills to produce Career Capital. I believe it’s important to not only work relentlessly to develop your rare and valuable skills, but also in choosing which skills to develop. In Law and many other professions, I believe it’s common that individuals end up focusing on the non-crucial aspects of their job, while neglecting what is lofty and likely to lead to success. I have fallen victim to this as well, as I enjoy reading about legal topics that are rather obscure and not directly relevant to my area of law.

Thus, to pinpoint the most salient areas for development, Newport asks a basic question: What must you understand in your field to develop the necessary Career Capital. For Newport, he believed understanding his field’s (computer science) most difficult results would be a good first step towards revitalizing his career capital stores. In my case, taking Employment law as the field, a good place to start would be reconstructing, analyzing, and comprehending the most utilized statutes in my arena. This would entail rigorous understanding of, and painstaking detail to , statutes like the Fair Employment and Housing Act (FEHA), or the Labor Code. This might consist of reading the corresponding legislative history, poring through the authoritative commentary, and understanding the statutory construction of my targets. Another Career Capital building technique Newport introduces is the Research Bible: Once a week, requiring yourself to summarize in your bible a paper you think might be relevant to your research or area of study.[2]            After you’ve developed some career capital, this is when you can cash them in for valuable traits. The main traits Newport glamorizes are Control and Mission. Control is vital because it increases individual’s happiness, engagement, and sense of fulfillment. With these underlying needs met, one can only imagine how much easier it is to continually develop your skills, thus acquiring more career capital for even better traits.

But there are, as Newport mentions, “Control Traps” for the unwary. This includes taking on too much control before you have enough career capital. This is unsustainable and should be avoided at all costs. To side-step this trap, Newport introduces the Law of Financial Viability: when deciding whether to follow an appealing pursuit that will introduce more control into your work life, seek evidence of whether people are willing to pay for it. If you find this evidence, continue; if not, move on.

With control and your career capital stores replete, you can start developing your Mission. Mission is so important because it provides a unifying goal for your career—something lofty, deeper, meaningful. Newport explains that for mission to come about, once must reach the cutting edge of their field, which requires focusing on a narrow collection of topics for a potentially long time. Once on this precipice, your mission will reveal itself to you. It is often the result of combining various ideas, concepts, principles you’ve stumbled upon, and then meshing them together to create something novel.

With your mission in place, you must work to maintain this mission. There are two primary ways to do this: (1) Utilizing the Law of Remarkability; and (2) Making Little Bets. The Law of Remarkability is satisfied if your mission is remarkable in the literal sense of compelling people to remark about it, and if it has the ability to be spread in a venue that supports these remarks. In other words, produce work in a community that is well respected and highly visible. One example of this in the Legal field would be publishing an article showcasing your talent in a highly respected legal journal or highly-read magazine. This could be a publication like Los Angele’s Daily Journal or a Law Review Journal (while I know many of these journals have caught fire in the past for being read at extremely low rates, your ability to market this journal and publicize it yourself can help the spreading of your work). For the sake of brevity, I’ll skip out on the more self-explanatory little bets technique (for more detail on this download my outline).

Now that you have your mission, the career capital and traits to maintain that mission, and the techniques to continuously further and expand that mission, passion will inevitably follow: You will be so good they can’t ignore you.

 

Cal Newport is a professor of Computer Science at Georgetown and is easily one of my favorite authors. I highly encourage anyone starting out, or looking to advance, in a career to check this book out as I believe it provides the blueprint and structure for a successful purpose in your career. Also, download my outline for further principles, definitions of concepts, and examples. Find the Book on Amazon here: So Good They Can’t Ignore You

Outline: So Good They Can’t Ignore You

 

 

 

 

 

 

[1] However, this isn’t to say So Good They Can’t Ignore You doesn’t offer valuable methodology tips as well.

 

[2] I also introduce a few more career capital building techniques in my outline attached, and refer to my articles on Deep Work and Deliberate Practice as they represent vital abilities and techniques sufficient to build career capital.