Michael Ehrenstein 00:01
Good day. My name is Mike Ehrenstein, and I’m the 2022 president of the Litigation Council of America. I’m here today with my friend Meryl Macklin, who is a fellow of the Litigation Council of America.
Michael Ehrenstein 00:15
And we’re here to talk a little bit about the virtues of humility in a trial practice. So, before we get into the topic, let me take 30 seconds to give you all the reasons why Meryl should really not be humble.
Michael Ehrenstein 00:32
She is a leader at Brian Cave’s renowned MNA Disputes Practice Group. Meryl specializes in the resolution of high exposure cases and has, as lead counsel, tried multi-week jury trials for the likes of Oracle, Union Pacific, and Clearwave Communications, and she has done so successfully.
Michael Ehrenstein 00:58
Meryl previously was the litigation department chair and was a member of her executive committee. She is the incoming president, I’m glad to say, of the complex Commercial Litigation Institute of the LCA.
Michael Ehrenstein 01:13
And with all of these accomplishments under her belt, one could easily understand why Meryl should be or could be less than humble. But she remains a paragon of humility, and that is, I think, part of her nature, and it’s also part of her choice.
Michael Ehrenstein 01:36
And so what I would like to do today is talk with Meryl a little bit about why humility is so important in the trial in our trial practices. So, first, welcome, Meryl.
Meryl Macklin 01:51
Thank you, Michael. It’s nice to be here.
Meryl Macklin 01:53
And I enjoy these podcasts, as you know, so I’m happy to be here.
Michael Ehrenstein 01:59
Great. So let’s start with this. When did you first start thinking about humility in trial practices?
Meryl Macklin 02:10
When I was a very young lawyer, I already started thinking about it because I worked very closely with someone who’s no longer living.
Meryl Macklin 02:19
But he was my first mentor and was really not not just a great trial lawyer, but he was also a great appellate lawyer. He had the ability to span every range of the practice. He was very well respected by many people.
Meryl Macklin 02:40
And I saw very early on in practice that he sort of embodied the qualities that I think of as humility. He was very unassuming in his manner, even though he was extremely smart, very effective, and I think actually did think very highly of himself.
Meryl Macklin 02:58
But his manner and the way he came across was very humble. And I saw him in a very formative situation for me, just incapable of lying, incapable of taking an extreme position, really just telling the truth and in one situation, almost begging the judge for release in a case in a way that had a courtroom wrapped listening to him.
Meryl Macklin 03:27
And I realized from watching this that was kind of a secret sauce for him. And it was so effective. And it really resonated for me because it said to me, don’t have to be a grandstander. I don’t have to take positions I don’t believe in.
Meryl Macklin 03:45
I don’t have to do things that I’m not comfortable with in order to be an effective lawyer. And that’s have thought about that so many times through the year. And and he really I mean, you could tell the emotion in my voice.
Meryl Macklin 03:58
I feel so strongly about this man. This is we’re talking about 36 years ago, probably 37 years ago these events occurred, but he was really that important a person to me.
Michael Ehrenstein 04:10
It’s interesting, one of the things that you said, he actually on the one hand was unassuming, but on the other hand and he thought highly of himself.
Michael Ehrenstein 04:21
Those were your words. So you’re reminding me of a definition that I read as we were preparing for this. It’s a quote that has been attributed, at least on the Internet, to C. S. Lewis. I don’t know if he really said this or not, but it’s attributed to him somewhere on the Internet.
Michael Ehrenstein 04:38
And the quote is, humility is not thinking less of yourself, but thinking of yourself less. And it sounds like maybe that is kind of where your mentor was. He had a high opinion of himself. He knew he was smart, he knew he had good arguments, but he also knew that he didn’t need to be a grandstander in order to be effective.
Meryl Macklin 05:05
I think that’s a very good way of putting it. I looked up humility as well, and I found just a bland dictionary definition that said it was freedom from pride or arrogance. And I think that’s exactly you can think that you’re a great lawyer.
Meryl Macklin 05:26
You can think that you’re smart, but not be prideful or arrogant about it. Just be confident in your position.
Michael Ehrenstein 05:33
It’s interesting, the reality of trial lawyering versus the myth of trial lawyering and how they are in some cases, just misaligned in particular.
Michael Ehrenstein 05:52
With respect to humility, the best trial lawyers I have seen are humble. And yet the public perception of the effective trial lawyer is somebody who’s got an outsized ego, who’s arrogant and full of braggadocio.
Michael Ehrenstein 06:13
So I was wondering if you have any thoughts about maybe why that is? Why is it that there’s this disconnect between the reality and the myth?
Meryl Macklin 06:24
Well, the unfortunate truth is that we watch a lot of movies and TV portrayals of a trial lawyer who is arrogant and kind of outside in his aggression and braggadocio, staggering around, swaggering around the courtroom, maybe staggering too, around the courtroom.
Meryl Macklin 06:45
But when it comes to what we really do and what a trial is really like, what really matters is can you be trusted? Does the judge trust you? Does the jury trust you, even? Does opposing counsel trust you?
Meryl Macklin 07:02
Does your client trust you when you tell the client what it is that you want the client to do or to say? And trust, I think, is earned by humility, not by arrogance, because everybody recoils, I think, from somebody who is trying to tell them what to do in a way that asserts this assumption that person is right and knows everything that they’re talking about.
Meryl Macklin 07:28
Where if you bring somebody into a conversation, show that you trust them, that person is going to give you back that trust as well. And that’s the key, I think, to being an effective whether it’s a trial lawyer or just an advocate in the office, day to day with clients, in deposition, whatever, we all.
Meryl Macklin 07:50
Are doing even outside the courtroom.
Michael Ehrenstein 07:56
I’ve witnessed before lawyers counseling clients as they were getting engaged. Listen, if you want to win this case, you better do everything I say. And I guess that’s arrogant, that is not humble.
Michael Ehrenstein 08:17
Right? But on the other hand, the most successful lawyers and successful lawyer client relationships I think are the ones where perhaps there’s more of a conversation, more questions being asked, more listening being done rather than dictating. Right?
Meryl Macklin 08:39
I completely agree and I think you can’t really know my goal in my practice is always to serve the client and serve the client’s needs. If the client doesn’t tell me what it wants or what he or she wants, I can’t really go forth with an approach that is going to achieve what the client wants.
Meryl Macklin 09:00
And I think the lawyers make a big mistake in telling the client upfront if you want to win the case X, because the client could very well have a very different objective than the one that you are assuming the client has.
Meryl Macklin 09:12
So listening is absolutely key to everything that’s going on. The lawyer, the judge. I’ve seen lawyers in court talking over the judge, interrupting the judge, telling the judge what the judge wants to hear and I’ve even seen a judge tell avoid lawyer to sit down and to stop it because it was not serving what the judge wanted.
Michael Ehrenstein 09:36
And I’m sure that interaction didn’t build the trust between the lawyer and the judge that the lawyer needed in order to be an effective advocate.
Meryl Macklin 09:48
Absolutely. And I had a funny situation. I mean, this was not really to my benefit, but it was really funny.
Meryl Macklin 09:55
A case where we lost every single thing that we did, every motion we lost all the way up to.
Michael Ehrenstein 10:04
I know you too well. There’s never been a case that you’ve lost everything.
Meryl Macklin 10:08
This one, we were losing everything. But interestingly, the judge I very much disliked. The lawyers on the other side, from a firm I will not mention and would actually look to me to give the reasons why she should rule against me. It was a very uncomfortable situation because there I was unable, as my mentor, to lie to the judge or to give the judge an argument that I didn’t believe in.
Meryl Macklin 10:38
And she knew that she was going to get the truth from me, and yet she was going to rule against me. It was a very odd situation, but I still couldn’t stop being just who I was. And so I felt like if I’m ever in front of that judge again, I have that credibility, I have that reputation.
Meryl Macklin 10:56
And that, to me, walking out of the room is as important as the facts were in the law. Why we were losing. Right. Wasn’t me.
Michael Ehrenstein 11:05
Of course not. Let me ask you this. Have you seen how arrogance or humility of a lead counsel I mean, you were lead counsel in these three giant cases that took ten week jury trial.
Michael Ehrenstein 11:23
Six week jury trial. As lead counsel, you had a team of people that you were working with. How does the interplay between arrogance and humility work within the team as opposed to with the court?
Meryl Macklin 11:46
I have always felt, and I still do this, even though I’m pretty advanced in this practice in terms of time in the saddle.
Meryl Macklin 11:54
I always think that what the junior people have to say is very, very important and sometimes more important than what the C or what I or some of the more senior people have to say. And I have always asked the junior people for their opinions as if they were really a peer of mine, because in a way they are.
Meryl Macklin 12:17
And when I started practice, I remember thinking maybe this isn’t a terribly humble view, but I remember thinking that the difference between me and the partners was not that they knew more or that they were better, but that they were older and they had been doing this longer.
Meryl Macklin 12:34
And that didn’t mean and they solicited I copied what I learned. They solicited me for my opinion. They valued what I had to say. I was the one close to the research. I was the one close to the documents.
Meryl Macklin 12:48
And I treat the associates in the same way, and I try to teach by example, in the same way that I learned by example. In one of those trials, we had an episode, and I think it’s still the people on that team still think about it and mention it to me, where we had an argument.
Meryl Macklin 13:10
I can’t exactly remember what it was, but we had been taking a position and we were going to present an offer of proof on this and do a whole big thing in the trial. And ultimately I decided that it wasn’t working for what it was we were trying to accomplish.
Meryl Macklin 13:26
And so we told the judge, or I told the judge we weren’t going to do it. We were going to abandon the argument and we were going to do something different. And I had I guess I talked to the team about it a little bit ahead of time, and they all freaked out about, really?
Meryl Macklin 13:40
You’re going to go up there and admit that we had a flawed strategy? But I ignored them and because I believed in it. And we had been in front of this judge for a long time in this trial because this was, I don’t know, the third or fourth phase of it.
Meryl Macklin 13:53
And so I stood up and I withdrew the argument, and I could feel behind me all of this anxiety. And after, after the session, everybody was like, I couldn’t believe it. What were you doing? You were giving up.
Meryl Macklin 14:10
How could you admit we were wrong, that we had this misguided position? And I said it was the right thing to do. We just had to do it. We weren’t going to win. We weren’t going to prevail. And in the end, I do believe I mean, we were doing well in front of this judge anyway, but we won everything after that because the judge just trusted us, and he did not trust the other side.
Meryl Macklin 14:36
And in the same kind of way that the judge was looking to me to give the reasons why I should lose, this judge was looking to us for the reasons we should win. And to me, that’s the name of the game.
Meryl Macklin 14:48
You get that reputation, you get that credibility, and you’re done. And if it means admitting you’re wrong or you don’t know something, I mean, I do that with clients all the time. And again, this is something I learned as a young lawyer.
Meryl Macklin 15:03
Client asks you a question and you don’t know the answer, don’t make it up. Don’t tell them something that might not be true. Say, you know what? I’m really not sure what the answer to that is. Let me think about it.
Meryl Macklin 15:14
Or I need to have somebody do some research into that. I’ve got some ideas about it, and it’s something we all learn to do over time. But I’m you see people very uncomfortable with that position. And I think in the end, again, I know I’m saying it over and over, but again, I think it earns you more respect to admit what you don’t know.
Michael Ehrenstein 15:38
I think that it’s very difficult for a lawyer who’s. Has won lots. To have the humbleness to actually openly, actively listen, not just to the client, to the judge. To listen or to pay attention, to really pay attention to what’s happening in the courtroom with the jury, to listen to the associates, to actually hear what they’re what the people on their team say.
Michael Ehrenstein 16:12
Because I’m the lawyer that won come on. It’s about me, right? Instead of being able to actually there was something I read. I think one of your colleagues wrote it, that the humble lawyer actually enjoys, wants his teammates or her teammates to be able to point out the weaknesses in your arguments and to make you think about it differently.
Michael Ehrenstein 16:48
So what you said a minute ago about soliciting input from other members of the team reminded me of that, because every member of the team brings something different to the table. There’s a different perspective, a different handle on the facts, a different view of the law, a different view of how it’s going to mesh or how it’s going to be presented and all of that.
Michael Ehrenstein 17:14
If you’re arrogant, it’s my way or the highway doesn’t work. Whereas if you can have the humility to absorb it, perhaps you can be more effective.
Meryl Macklin 17:29
Yeah. And another thing that I have come to, and after many, many years of practice in big firms where it is routine to have multiple lawyers.
Meryl Macklin 17:40
Attend every event. And that’s not something that I did as much when I was younger. But I have come to see the value of making sure that I have another person in the room at key arguments or depositions, because I can’t watch everything, I can’t think of everything.
Meryl Macklin 18:00
And I really need somebody there who’s got eyes and ears on everything else that’s going on. And I don’t think of it the way that I did earlier in my career as maybe just kind of not padding, but just kind of unnecessary access of lawyers.
Meryl Macklin 18:17
There’s really a true value in that because you’re not talking in the echo chamber of your own head, then you’re getting valuable input from others.
Michael Ehrenstein 18:27
Great. Especially in trial. Right?
Meryl Macklin 18:29
Michael Ehrenstein 18:31
Think about I know that after every trial, I am so mentally and emotionally spent, I’m bordering on almost it’s not depression, but I need a couple of days to just recharge the batteries. Right?
Michael Ehrenstein 18:46
And the reason for that, I believe, is because when we’re in trial, we’re operating on such a high level. We’re paying attention to the judge. We’re paying attention to everything that every single one of the jurors is doing.
Michael Ehrenstein 19:01
We’re paying attention to the facts, we’re paying attention to the law, we’re paying attention to the witness on the stand. And we are hyper focused on all of this simultaneously. There’s no way that we can do that by ourselves as well as we can do it with a team, especially in big case. Right?
Meryl Macklin 19:22
Michael Ehrenstein 19:27
I know you touched on an example or two. Can you share with us an example of an instance in which you saw arrogance? Just fail hard or an example in which you witnessed the persuasiveness of humility?
Meryl Macklin 19:54
I’m gonna go back on the persuasiveness of humility. I touched on this earlier, but I really want to talk about this because it was such an important event for me. So this mentor that I’ve talked about, this was a case it was back in the early 90s.
Meryl Macklin 20:12
It was one of the failed savings and loan cases. And we’re presented a big accounting firm and an individual who was responsible for the account at the firm. And that had been an individual had taken the fifth up to that point, and the judge had given a drop dead date by which people had to either make a determination to maintain their assertion of the fifth or waive it.
Meryl Macklin 20:37
And that date had passed, but our client had been informed that he was no longer a target or anything in the investigation, the federal criminal investigation. So he was going to be free to testify. And we knew it was going to be an uphill battle with the judge to convince him that we should be able to do that.
Meryl Macklin 20:58
And this lawyer came in. Larry Kaposki was his name, in case anybody knows him. He came in and he really essentially begged the judge to allow our client to testify. And as much as said, you are putting us in a situation where we could lose because of this, you are effectively punishing our client because of this.
Meryl Macklin 21:23
You could have heard a pin drop in that courtroom. There were the leading lights of a Los Angeles bar. This case was in Arizona, but most of the other parties were represented by L.A firms and the leading lights of the Arizona bar.
Meryl Macklin 21:39
The courtroom was packed, and he was begging. I mean, it didn’t work, but I’ll tell you, he got the respect and admiration of every single lawyer in that room. I watched nine or ten lawyers come up to him afterwards and congratulate him on a good argument and on what he had done.
Meryl Macklin 22:00
Even though, he didn’t win. And I thought, wow, that’s such an important thing that just happened because he’s now got, he already had the respect of all of these people, but they’ve so admired him and so respected what he had done.
Meryl Macklin 22:16
And I felt like a lot of those lawyers probably couldn’t have done it themselves, but they recognized what an accomplishment it was to have done that. And that just still sticks with me. It was really a wonderful moment.
Michael Ehrenstein 22:32
That’s interesting. I mean, the humbleness of having to beg to the judge even though he lost the battle, was there a strategic value to the case in having done that? Even though you lose the battle? Maybe it adds to your arsenal to win the war. It adds to your trust arsenal.
Meryl Macklin 22:57
Absolutely. And I firmly believe we wouldn’t have won that motion anyway. And he knew that. He knew that the only possible path to winning was that approach. And that was I think what stuck with me is that an arrogant lawyer who goes in guns glazing with a very strong and aggressive argument really seeding.
Meryl Macklin 23:20
No ground is not, in my opinion, sometimes able to see that you could win by taking a lesser position, by giving up some of your argument, by looking at the long game instead of just what’s going on right at the moment.
Meryl Macklin 23:38
And I think that for me, to me, the arrogant lawyer and this is what I find very, very frustrating when they’re opposing me is somebody who needs to win every single battle, who doesn’t understand that you can seed.
Meryl Macklin 23:53
Points lose here, agree here, and still get for your client ultimately what you need to get, whether that’s in negotiation or motion practice or in a trial.
Michael Ehrenstein 24:06
So humility becomes almost on the one hand, it’s part of your character, it’s part of who you are.
Michael Ehrenstein 24:15
On the other hand, it sounds like it can be used with strategic effect. You can play the humble card and hope to gain more trust to be used down the line in the case. Do you see that happening?
Meryl Macklin 24:31
I do see that happening, and I’m a little conflicted about it, to tell you the truth, because I feel like it’s not really consistent with my view of Humility to use it strategically.
Meryl Macklin 24:44
And I guess all I have to say about that is if it works, it works, and you use it. And everybody has developed for him or herself an approach to all of these things that works. And I do notice myself sometimes using Humility strategically because it can be a bit of a secret weapon.
Meryl Macklin 25:05
And I think even with all the experience that I have, I still find that I’m not discounted but thought a little less of the because of my gender. And I do think that’s very real. And I think it’s more difficult for women to take a strong and arrogant position because they are much more easily dismissed that way.
Meryl Macklin 25:28
And so sometimes you just have to use that to your own advantage. And so, yeah.
Michael Ehrenstein 25:35
I wonder how much of the humility, in order to be effective, if it’s transparently being used as a strategic tool, if it can sort of boomerang on you, or if it really has to be genuine and authentic in order to be effective.
Meryl Macklin 25:58
Yeah. And I think and we all know people who are phonally that’s probably not a word who are phony in their friendliness or phony in their accommodation of things or whatever it is, and we can all spot that.
Meryl Macklin 26:13
So yes, I think that’s right. And I think if you use something, maybe then arrogance, when you use strategically, if it’s authentic, becomes okay. I don’t know.
Michael Ehrenstein 26:25
It just seems like genuine humility is a wonderful virtue and something that we as trial lawyers should be aware of and should use false humility seems like it’s a dangerous place to go.
Michael Ehrenstein 26:47
And that arrogance might be better than false humility. Right. Maybe.
Meryl Macklin 26:52
I have always had the view the entire time I’ve practiced that you win or lose on the facts and the law and the judge. I can’t say I have seen more than two or three things where I thought that the lawyering made a difference and that we won because of the lawyering.
Meryl Macklin 27:16
And that’s even against lawyers who are not good lawyers. But it’s rare because the judges are usually seeing exactly what’s going on. And once you see that and you know that I think that arrogance. And thinking that you’re somehow responsible for all of it. It’s a dangerous place to go.
Michael Ehrenstein 27:38
Right. I mean, I guess part of humility is recognizing that we can’t as trial lawyers, as much as we think that it’s my show, it ain’t about us. And there’s certain things we can’t control.
Meryl Macklin 27:50
Michael Ehrenstein 27:53
And I guess that kind of acts not only as a sound for our soul when we lose. And it’s also something that is supportive of the system of our system of law.
Meryl Macklin 28:11
And maybe as much as anything, that’s where arrogance is coming from, is that fear that there’s no control.
Meryl Macklin 28:20
And so maybe we can seize control. Or maybe the arrogant lawyer can seize control by not allowing there to be anything but the position that they’re taking and by kind of asserting him or herself right in the middle of things and making it about them.
Meryl Macklin 28:40
Maybe that’s what it is because it’s a scary place to be when you can’t control what’s going on and when you may lose the entire case based on something that the judge says or the jury says.
Michael Ehrenstein 28:56
Do you have any thoughts on summing up kind of pulling it all together for our audience about the virtue and wisdom of humility in our trial? It’s necessary in our trial practices.
Meryl Macklin 29:12
Well, for me, it’s something that I can’t help. So it is kind of who I am. If I’ve made a mistake, I admit it. If I have taken the wrong path, I change directions.
Meryl Macklin 29:25
And I found that what that’s led to is. Is credibility for me and a reputation that I want to protect. And so I think that that’s all we really have is our reputations. And if our reputations are that, we are truth tellers and we are reasonable and we are straight up the middle and we admit when we’re wrong or when something’s not working.
Meryl Macklin 29:51
Those are the kind of people that clients want to hire. Those are the kind of people people that judges want to listen to. And those are the kind of people that opposing counsel respect.
Michael Ehrenstein 30:01
Meryl, thank you so much for giving us your time and for sharing with us your wisdom today.
Meryl Macklin 30:08
Thanks, Mike. It was fun. It was really fun.
Michael Ehrenstein 30:10