Life, Law and All That Jazz: Using the Art of Improvisation in the Courtroom

Michael J. Newman

The Legal Intelligencer

Miles Davis' Kind of Blue is one of my desert island, all-time favorite records. I have the album cover for Sketches of Spain framed on my bedroom wall. I played baritone saxophone in my high school jazz band, and if I could learn any skill with the simple press of a button -- Matrix-style -- I would become the next Thelonius Monk.

For me, though, jazz is more than just a style of music. Jazz improvisation has always struck me as an apt metaphor for a life well lived. Lately, I have also been thinking about the strong parallels between jazz and the practice of law. Strange as it may seem, I think that jazz provides a very helpful way to think about both life and litigation.

JAZZ IMPROVISATION

Jazz was born in the American South from the unlikely marriage of African musical traditions and European instruments. Although jazz has evolved since those early days to encompass many forms, from blues to bebop to jazz fusion, a key element of jazz has always been improvisation.

In many songs, a basic framework of chord progressions provides a structure, within which individual performers have the freedom to explore beyond the written notes. An improviser plays with melody, harmony and timing, all while remaining in constant musical conversation with the other members of the ensemble.

The emphasis on improvisation gives jazz one of its most distinctive and powerful features: surprise. This fundamental attribute of jazz ensures that no two performances will ever be the same, tantalizing the listener with the hope that something new and beautiful might be created at any time. As the great trumpeter Louis Armstrong said, "Jazz is music that's never played the same way once."

JAZZ AND LIFE

"Life is a lot like jazz ... it's best when you improvise," George Gershwin said.

Jazz improvisation makes for a pretty good life philosophy. While a jazz musician is given the space to improvise in and around the structure of a song, this freedom is not absolute. The magic of jazz is not based on happenstance and randomness. Otherwise, anyone could be Miles Davis. Rather, jazz musicians earn the right to their freedom through a deep understanding of musical theory and a keen ear, learning which notes and phrases will fit with the chords of a song and how to anticipate where a song will go next.

Life should work in the same way. We spend years developing the values and principles that help to structure our lives. These values and principles -- the chord changes of a life -- are, of course, incredibly important. Without them, our choices have no context or meaning.

But, just as importantly, we must leave ourselves room to play in and around these "chord changes." Sometimes, we have to push up against our principles, just to test our assumptions. Other times, we have to play a wrong note just to realize what the right note sounds like.

Like many other "Type A" people, I constantly have to remind myself that life does not have a script; it cannot be planned. A life bound by too much rigidity does not allow for surprise, and a life without surprise is, well, boring. But a life that embraces movement and discovery is like good jazz: energizing, engaging and vital.

JAZZ AND LAW

Through these early years of my legal career, I have begun to realize that jazz improvisation is an appropriate metaphor for thinking about the practice of law as well. From my experiences and the observations of more seasoned colleagues, I have learned that the qualities that separate competent lawyers from truly gifted ones are very similar to the qualities that distinguish a middling jazz performer from a transporting one: an understanding of the fundamentals, a quick mind and the ability to listen.

When I prepare for a deposition, I create an outline covering every possible issue and every possible document from every possible angle. I know going in exactly what I want to ask and exactly what I hope to get on the record. And then I go to the deposition and everything changes.

Witnesses sometimes do not answer questions like I imagine they will. (Shocking, I know.) Sometimes, they tell me something completely unexpected. More often, they simply do not remember facts that I am sure they will. Before long, I might as well trash my perfectly prepared outline. As it turns out, outlines are a wonderful tool for deposition preparation, but much less useful in practice.

I am at my best in depositions when I have a firm grasp of the underlying facts and nothing more than a checklist in front of me. When I give myself the space to listen, think and inquire, the deposition goes more smoothly, the transcript is cleaner, and both I and the witness are usually more at ease. We aren't exactly "making music," but we aren't far from it.

My colleague Bill Hangley, who has tried hundreds of cases over the course of his career, assured me that the metaphor is even truer for trials. Bill said that no matter how much time passes before a case goes to trial, he still always learns new things about the case while in the courtroom. Preparation is necessary, of course, and Bill never just wings it. But he always gives himself the space to adjust to new facts and circumstances, not to mention the reactions of the jury. The ability to listen and adapt, Bill said, is an essential element of excellence for a litigator. And, he emphasized, it makes a trial fun.

We, as lawyers, lead busy lives. Our professional days are often filled with fast-approaching deadlines, and our personal lives demand no less commitment and effort. We often crave structure for fear that our lives will spin out of control. Nevertheless, we cannot forget to give ourselves room to play -- to push against the very boundaries we create to impose order on our lives. Whether inside the courtroom or out of it, we must remember to improvise. By approaching the job with a sense of fun and excitement, going to the office becomes a whole lot less work.

Michael J. Newman is an associate in the litigation department of Hangley Aronchick Segal Pudlin & Schiller. He has broad experience in complex commercial litigation involving contractual disputes and insurance coverage issues. He has counseled clients facing serious allegations such as securities fraud, insider trading and breach of fiduciary duties.