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The Power of Pessimistic Practice

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You can’t walk around with your ears open in America without hearing about the “power of positive thinking” – even as a litigator and trial lawyer who lives in the throat of conflict and negativity much of the time.

Certainly, part of your job as a trial lawyer is to project confidence in your ability to successfully resolve your client’s case. If you are a successful litigator, though, you probably will not be surprised that psychologist Gabriele Oettingen suggests in her new book, Rethinking the Power of Positive Thinking, that “positive thinking” isn’t all it’s cracked up to be.

In fact, Dr. Oettingen has found that when a person does not have previous experience with a situation or task, fantasizing about a successful outcome or a reward at the end of a job actually saps people’s positive energy and makes it less likely they will succeed.

What does work?

Imagining the obstacles in the way to a successful outcome and figuring out how to overcome those obstacles.

So instead of just seeing yourself breaking the tape, arms outstretched at the finish line, see yourself on the track, leaping high over each barrier, avoiding the runner who fell next to you and finding a clear path to winning.

This is why, when litigating a case, the path to a successful resolution is to put yourselves in the shoes of your opponent and see the case from their point of view — and to see it from the judge or juror’s point of view as well — so that you can spot the obstacles you need to overcome.

It is also why effective witness preparation always entails tough cross or deposition practice paired with skills building and emotional support. Such practice allows your witness to experience what it will be like in the witness chair, feeling some of the tough feelings, finding those places where the right words just don’t come, with an opportunity to then work on crafting answers that are truthful and avoid trouble, as well as get more comfortable with the rules and rhythms of testimonial exchange.

It is also why educating your client about the likely barriers to litigation success is key to your credibility and success as an advocate. Younger litigators, in my experience, often have not yet found the right balance between reassuring the client and creating a false front of positive messages. You want your client to be your partner in finding ways to overcome the obstacles and you cannot build that partnership if your client is stuck wearing rose-colored glasses.

I like to think of this as the “power of pessimistic practice” – practice that rehearses bad outcomes and builds skills, based on smart thinking about what could go wrong.

Positive thinking still has its place – conveying confidence your abilities and those of your team, for example, is important – but rooted in your past experiences and a realistic assessment of the challenges you and your client face.

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