Empathy is the ticket. While defending a case of a rejected job applicant, who claimed race discrimination in a no-hire decision, my team tried to see what he saw. What we saw was a plaintiff who wanted the job badly and took deep personal offense when he did not get it. In our opening to the arbitrator, we argued that this was not a case of discrimination, but of disappointment; our decision was understandable but not malicious. Effective advocacy starts not with the GC’s company’s own viewpoint but with that of the other: the employee, her lawyer or even an executive in the GC’s own organization.
Then and Now
Art empowers by providing tactics, too. When planning an opening, whether for a brief, a trial or a joint mediation session, think of an establishing shot. It defines the opening sequence of a scene, especially at the start of a movie. It sets the tone, place and time for the events to unfold. It’s twisted together like a pretzel with the narrative that follows.
For a great establishing shot, look to “Wall Street,” Oliver Stone’s story of how any of us are corruptible given the right constellation of events. The viewer sees a deitylike view of New York City, spiraling down until it alights upon ambitious Bud Fox. The viewer understands he’ll be the chosen one, just waiting to be led into temptation by his serpent, who later pops up as Gordon Gekko. The tone is set and the story unfolds.
Read Yeats’ “A Prayer for My Daughter.” He sets the stage with a violent storm, his child in a crib, nothing but some trees and a hill to blunt the storm’s fury:
I have walked and prayed for this young child an hour
And heard the sea winds scream upon the tower,
And under the arches of the bridge, and scream
In the elms above the flooded stream;
Imagining in excited reverie
That the future years had come,
Dancing to a frenzied drum,
Out of the murderous innocence of the sea.
Not exactly a “dark and stormy night,” is it? It’s art that makes the difference.
The protagonist sets out dangers and then provides the protection: a prayer for his daughter’s safety and a hope to contradict his frenzied fears, that “May she be granted beauty, and yet not/Beauty to make a stranger’s eye distraught” and “May she become a flourishing hidden tree/That all her thoughts may like the linnet be.”
Look at the duality of the poem’s structure: A threat contrasts with a protection, an assault results in a fending-off, a danger is resolved by an escape. Establishing-shots in the law are the same: strong statements, powerful contrasts and vivid images that are not overwrought but are proportionate.
Know this: Persuasion is often a matter of what is left out, not of what is included. Art teaches much on this score. A jazz saying holds that it’s not about the notes, it’s about the space between the notes. Persuasion is about creating a conflict between the desire to linger over what is being said with the desire to move quickly to what’s next. Music can illustrate this narrative tension. Give a listen to Mozart’s Concerto for Clarinet in A, the music from the movie “Out of Africa.” Listen and see.
Art wars with two pernicious legal myths, which can get a GC’s legal strategy off track. The first myth is that facts win a case. Not true. Decision-makers don’t need more facts, they need better stories, and art shows lawyers the way. The second legal myth is, when in doubt, introduce the exhibit, put on the witness and ask the extra question. Art counsels restraint, a holding back, as a way to success: the Mozart tempo, jazz pauses, poetry’s spareness.
Here’s a final thought. Get a razor. Go to the attic. Slice open the duct tape on the boxes of books from college. Flip through them. Look at what your younger self highlighted then, and see if it’s what you’d highlight now. Remember the person you once were and, most likely, still are.
Michael P. Maslanka is managing partner of the Dallas office of Ford & Harrison. His e-mail address is [email protected]. Maslanka is board certified in labor and employment law by the Texas Board of Legal Specialization. He writes the Texas Employment Law Letter.
