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Are the Law's Lessons Also Life Lessons?:


A Review of Winning Every Time: How to Use the Skills of a Lawyer in the Trials of Your Life

By ANITA RAMASASTRY


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Friday, Aug. 27, 2004
Lis Wiehl, Winning Every Time: How to Use the Skills of a Lawyer in the Trials of Your Life (Ballantine 2004)

Can you borrow lessons learned inside a courtroom, and apply them to life? Lis Wiehl -- an attorney and Fox News and NPR legal analyst -- believes so. Her clear, engaging self-help book, Winning Every Time, is an easy-to-read primer that gives readers a new way of thinking about problem solving.

Wiehl - a former federal prosecutor -- is an associate professor at the University of Washington School of Law, where she serves as the Director of the Law School's Trial Advocacy Program (and where I am also a professor). She rose to fame when she served as deputy chief minority investigative counsel for the House of Representatives during President Clinton's impeachment hearings.

In Winning Every Time,Wiehl helps us reexamine our own techniques for coping with problems and conflict. She contends that too often, we violate the rules that govern trial attorneys, and ought to govern us, too - by arguing conclusions without the benefit of factual premises; reacting with emotion instead of presenting hard facts; or failing to make calm, irrefutable counterarguments.

Wiehl's Own Life Trials

Based on the success Wiehl has achieved in her own life, taking some advice from her certainly can't hurt. Wiehl uses many personal anecdotes throughout the book - and they are instructive and enjoyable.

For example, based on sheer willpower, Wiehl landed a meeting with Pulitzer Prize winning journalist Anthony Lewis. With his help, she was able to land a job writing Op Eds for the New York Times.

Similar initiative helped her land her current post alongside Bill O'Reilly on Fox News. One has to admire her savvy tactics and her direct pursuit of her goals.

Wiehl has been successful in counseling others as well. She decided to write her book after a paralegal with whom she worked during her stint in private practice, received a negative performance evaluation (the first in many years)

As Wiehl notes "I first realized that the skills I learned as a lawyer could empower people beyond the courtroom when Jennifer, a woman with whom I worked, came to see me in tears . . . . But after more than five years of outstanding performance reviews from the attorneys for whom she worked, Jennifer had received a negative review from her new staff supervisor, Michelle."

Wiehl used her legal training to help Jennifer develop her case, martial her evidence, make her argument and ultimately succeed by having her supervisor amend the review. Wiehl realized the skills attorneys learn in law school and in practice could be applied to everyday situations.

The Eight Steps: Borrowing Specifics From a Trial Lawyer's Process

The basic premise of Wiehl's book is simple: When faced with a problem, plan a strategy to solve it, just as you would if you were an attorney preparing for trial. The process, she says, should have eight steps. In explaining each, I have added some of my own examples to illustrate Wiehl's points.

The first step is "Know What You Want: The Theory of the Case. In this step, Wiehl advises that you outline your premise clearly and establish your objective accordingly. Do you want to stay married - or get divorced as soon as possible? Depending on your goal, your approach will differ greatly.

Wiehl advises, also, that when you are clear on your goal, you must figure out a way to sum it up briefly - giving your story a "simple but memorable" theme. A good theory, she says, is one that is "easy to remember, appeals to common sense, is consistent with the evidence, and fits with your audience's concept of fairness and justice." She analogizes the process to that of writing a song or developing an advertisement - the theme is the key.

The second step is "Choose and Cultivate Your Audience: Voir Dire." Wiehl counsels that you must your case to the person who "calls the shots," and know the perfect time and place to do so. Merely complaining to colleagues about a workplace complaint won't substitute for going to the person whose job it is deal with such complaints. Bothering that person late on a Friday afternoon when he has dinner plans is simply foolish.

The third step is "Marshal Your Evidence: Discovery." At this stage, you assemble all the facts that support your cause, even information that may challenge your objective. This is particularly good advice from Wiehl: Closing one's eyes to the vulnerabilities of one's case can be lethal.

The fourth step is "Advocate with Confidence: Making the Case." Wiehl suggests that you present your opening argument and offer your evidence calmly and methodically. Don't get rattled, or allow emotion to come to the fore - make a clear analytical case that is persuasive to your listener.

Wiehl also cautions that the reader should avoid "red herrings" - because "distracting, faulty, or shortsighted arguments subvert your true objective." Thus, Wiehl asks us to explore what our own case or problem is not about. Pruning out irrelevancies allows the arguer to focus on the heart of the case.

The fifth step is "Counter the Claims: Cross-examination." Your opponent will offer his or her case - one that may have its own theme, and its own supporting evidence. The best way to fight that case, Wiehl suggests, is to challenge your opponent's allegations consistently, but gently, through a series of "yes or no" questions. (Unfortunately, this step may be one that is far more workable in the courtroom, than in real life. In real life, the "witness" may be annoyed at being literally cross-examined.)

The sixth step is "Stay True to Your Case: Avoid the Seven Deadly Spins." Here, Wiehl advises not only on what to say, but also on what not to say - noting a number of tactics that are off limits. She persuasively counsels that you should keep your argument authentic by avoiding false inferences, hearsay, and subjectivity. You won't win the case based on speculation, on what someone else said, or on your own subjective opinion: You'll win it on the facts as you present them, with a clear them - or not at all.

The seventh step is "Advocate with Heart: Let Me Tell You a Story." Wiehl advises that you ought to make your case personal with a special story that will convey your message in a memorable way. Just as attorneys will draw personal anecdotes into a closing or opening argument to illustrate a point, a person addressing a real-life problem ought to do the same.

The eighth, and final, step is "Sum It Up: The Closing Argument." Here, Wiehl suggests that you deliver a fervent and succinct summation of your theory and evidence -- and close the deal.

Wiehl's Concrete Applications - Helpful and Practical

"Winning Every Time" is divided into two parts. The first segment describes the eight steps I have summarized above. The second part of the book applies the eight steps and shows how to use them in different arena of people's lives -- at work, in business and consumer negotiations, and with family members.

Wiehl makes her eight steps come alive with lively, and easy-to-relate-to anecdotes from her professional courtroom and personal life, along with comments on high profile trials such as O.J. Simpson's. (The lesson from the O. J. Simpson trial, Wiehl notes, is that one must present a theory of a case that is based on fact and reasoning. Appearing pushy and aggressive to a jury is not a recipe for success.)

Unfortunately, Wiehl's book occasionally veers a little too much into the domain of cute stories. (For example, we hear about how Wiehl wrongly accused her son of eating frosting off her daughter's birthday cake. In fact, her daughter was the culprit.) But generally, Wiehl's illustrations of her points are helpful and convincing.

Are There Limits to How Wiehl's Eight Steps Can Be Used in Real Life?

Fortunately, Wiehl doesn't suggest her eight steps can solve every problem. Indeed, she concedes, "People married to lawyers will tell you they hate it when their spouse uses cross-examination in a family argument." There are limits - especially when it comes to turning one's tactics upon loved ones.

And she notes that though lawyers must be zealous, in real life it can be very wrong, at times, to use attorney-like tactics. Of course, we can sometimes use legal tactics and maneuverings to get away with something . She notes, for example, that in situations where a person is in the wrong, he or she may be tempted "to use a theory of the case that my friend in the FBI refers to as "Deny, deny, deny, demand proof, and make counterallegations."

But she asks us to examine our motives and to reflect on questions such as "Is it worth it in the end? Will I feel good about the victory?"

Wiehl's book, in the end, is well worth reading. Some may find it reads a bit too much like pop psychology. But its very accessibility is often its strength: It does what it promises -- providing valuable and practical common sense approaches to problem solving. And in a litigious society like ours, thinking like a lawyer may be a wise strategy indeed.


Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology.

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