Lethal Generosity in the Legal Profession

 Posted on November 14, 2008 in Uncategorized

Criminal defense trial lawyering

integrates technology, telecommunications and social interaction, and the construction of words, pictures, videos and audio. This interaction, and the manner in which information is presented, depends on the varied perspectives and "building" of shared meaning among communities, as people share their stories and experiences.


I scavenged the definition from the Wikimedia page on "social media." But the metaphor holds true - like social media, modern criminal trial law integrates various sorts of interaction (telephone, interview, email, psychodrama, voir dire, cross-examination, direct examination, argument, Power Point, video, audio, and so forth) to build shared meaning among lawyers, witnesses, and judge.

Some of the rules of social media apply equally to criminal defense trial lawyering. (Is that trite? Many of the rules of anything probably apply to anything else.)

For example, the concept of lethal generosity (from Shel Israel's Global Neighbourhoods blog):

that the most generous members of any social media company are the most credible and influential and as such, they can devastate their competition in the marketplace.

I don't believe I have competition among the criminal defense bar. Colleagues, yes; competition, no. We happen to be fishing in the same hole, but there are plenty of fish for all of us.

But I do believe that the most generous members of the criminal defense community are the most credible and influential. So for "competitor" read "colleague" in Shel's summary of the rules of lethal curiosity:

In social media, the best way to beat your competition is to be more generous with anything that your customer values. In blogs, you are served best by sending people away through links. In Twitter, as Chris Brogan, one of that community's prominent thought leaders advises people to write a dozen times about other subjects for every time a Tweeter talks about his or herself.This is about as far away from the aging command and control philosophy as you can get. In today's competitive environment, you need to understand that the customer is in control. If you want to win, give the customer what the customer wants. If you do this often enough and credibly enough it will be brutal to your competitors–unless the competitor rises to the occasion and tries to "out-generous" you back.

Scott Greenfield is not enthusiastic about sharing motions with other lawyers:

Certain of my motions have gained surprising popularity, where I receive calls from lawyers I've never heard of asking for a copy. They have got to be kidding. I'm not here to do their work, or give mine away so they won't have to do their work. I could be flattered by these requests. I'm not. Do your job, man. And this is the last time I'm going to tell you: get out of my yard!

(Okay, I added that last part.)

Once I've written a brief or motion and released it to the wild, I'm happy to share it with other criminal-defense lawyers. We are mostly on the same team, and if I can give someone. It doesn't cost me anything to share. It doesn't cost me anything if they don't proofread it before filing it (unless they leave my name in the signature block). It doesn't even cost me anything if they are using it to avoid doing work of their own.

I'm even happier to have potential clients see my work before they hire me. Some of it is bleeding-edge lawyering (what if "notice and an opportunity to be heard" really meant "notice and an opportunity to be heard"? what if "no religious test" meant what it said too?), but I write on the level of my audience, so the average client shouldn't have any trouble understanding the arguments.

I believe that what Shel writes about lethal generosity applies to the practice of criminal defense trial law as well: those lawyers who are generous in sharing their time and talent with others in the profession, and who give the customers more of the information the customers crave, will do very well for it.

This is a close relation of one of the rules of improvisational comedy: you can look good if you make your partner look good

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