The Secret Behind The Dumb But Successful Lawyer

Lawyers, particularly young lawyers, often pride themselves on being more clever than one another, and so particularly resent other lawyers who don’t seem to possess the same rapier wit and razor-sharp reasoning skills we claim for ourselves.

Every lawyer knows that dimwit who they can’t believe even passed the bar. The one with all those uninspiring and poorly-researched arguments in their briefs that never cite any relevant cases. The one who prefaces every argument to the court with “in layman’s terms,” as if the judge wasn’t also a lawyer.

The one who, despite being dumb as a stump, has a steady clip of good business.

One might not expect Mark Pagel, a Fellow of the Royal Society and Professor Of Evolutionary Biology at the University of Reading, to explain this frustrating paradox, yet here he is with Infinite Stupidity over at Edge.org:

If I’m living in a population of people, and I can observe those people, and see what they’re doing, seeing what innovations they’re coming up with, I can choose among the best of those ideas, without having to go through the process of innovation myself. So, for example, if I’m trying to make a better spear, I really have no idea how to make that better spear. But if I notice that somebody else in my society has made a very good spear, I can simply copy him without having to understand why.

What this means is that social learning may have set up a situation in humans where, over the last 200,000 years or so, we have been selected to be very, very good at copying other people, rather than innovating on our own. We like to think we’re a highly inventive, innovative species. But social learning means that most of us can make use of what other people do, and not have to invest the time and energy in innovation ourselves.

Now, why wouldn’t we want to do that? Why wouldn’t we want to innovate on our own? Well, innovation is difficult. It takes time. It takes energy. Most of the things we try to do, we get wrong. And so, if we can survey, if we can sift among a range of alternatives of people in our population, and choose the best one that’s going at any particular moment, we don’t have to pay the costs of innovation, the time and energy ourselves. And so, we may have had strong selection in our past to be followers, to be copiers, rather than innovators.

Evolution, Pagel argues, has greatly favored social learning, which in turn favors copying good ideas instead of spending too much time and energy coming up with new ideas, with the inevitable failure that comes with the attempt to innovate and the social disruption that comes with successful innovation.

The rapid and pervasive spread of ideas enabled by the internet exacerbates the problem, he says, making us even dumber and less creative: “we might, in fact, be at a time in our history where we’re being domesticated by these great big societal things, such as Facebook and the Internet.” Some have tied the “infinite stupidity” analysis to the phenomenon of filter bubbles, in which the network of information sources people build around themselves create the illusion of diverse information when, really, everyone’s all repeating similar ideas within a proscribed framework. Spend some time on Twitter watching retweets of retweets of boring, middle-of-the-road articles on Twitter and you’ll see what he means.

Food for thought, but that’s not the only reason I mention it here. Consider this critique of the article that Pagel downplayed the true value of “copying.” Choosing who and what to copy is its own skill:

What I find troubling with the above analysis is the tacit equation of copying behaviour with stupidity. Surely copying is not totally passive. People make choices as to what to imitate and which ideas to take on board. In many situations, one is presented with different new ways of doing or thinking, which may be mutually exclusive, in addition to the option of just sticking with the old. In making a choice, some intelligence must surely be operating.

A century ago, “IQ” as measured by a variety of reasoning tests was all the rage, but over the past generation of two “emotional intelligence” has taken precedence, such that the skill of understanding and managing other people is considered in many situations to be more important than the raw ability to perform inductive or deductive reasoning. I’m not sure if that name is still in vogue, but the idea holds true in the law. Lawyers don’t prevail by coming up with great ideas; they prevail by coming up with ideas that convince others.

In the advice I gave to incoming law students (nearly three years ago, which I suppose means the students in question are finishing up soon), I gave some advice about students keeping clever ideas to themselves:

Do not, under any circumstances, keep to yourself a bright idea you get in class. Many of your classmates will do this, and, “knowing” the answer to a question, will not say it out loud, believing that it will help them on the final exam. Their answers are likely wrong, just as your answer is likely wrong. You will do far better by having the professor correct your wrong answer.

Relatedly, as Ron Miller noted, ”there is no law that only good plaintiffs’ lawyers get good cases,” and I added the caveat that a “good” lawyer sometimes just means a sincere lawyer who believes in their client’s cause, even if the “good” lawyer can’t seem to follow the basic dictates of professionalism at trial.

Which brings me back around to the dimwit lawyer who seems to do quite well. Originality is important in developing the law, but it is seldom rewarded. The fox knows many things, but the hedgehog knows one big thing, they say, and that dumb lawyer you resent knows one thing: which idea will resonate with a judge or jury. They’re not bright enough or diligent enough to express it very well, and they may not even realize their own ability, but that’s it: what’s persuasive to them is persuasive to many others.

What if you don’t naturally have this talent? Evolution gave you the tools you need. When you see it in action, study it. Copy it. Steal it like an artist.

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  • Guest

    Sometimes I wonder if those lawyers passed the bar because of “social learning.” In school, we called it cheating. Dumb lawyers are only able to make arguments that resonate with judges and juries because these groups, with a few exceptions, are similarly dumb. Our system of getting judges doesn’t exactly entice smart people to go for it, and smart jurors often manage to get out of jury duty.

    • Marc Thomas

      And then there’s the timeless quote from William F. Buckley, Jr.: “I am obliged to confess I should sooner live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.” So, too, I’ll sooner live by the verdict of jury, citizens tried and true, than any judge. And I’d be willing to bet a lot that the odds favor a jury getting it right, day-in and day-out in courtrooms accross this country, than any judges.

  • guest

    Some lawyers are just good at marketing, get good cases, settle, tell the client how great a job they did, and move on.

    This is especially true in “lower tier” law; not so much in complex litigation.

    • http://www.litigationandtrial.com/ Max Kennerly

      It is equally true in complex litigation. See, e.g., http://www.litigationandtrial.com/2009/04/articles/the-law/for-non-lawyers/three-ways-to-lose-your-business-lawsuit-wachtell-and-the-failed-hexion-huntsman-merger/
      Yet Wachtell is consistently referred to as arguably the best firm in the country. I imagine Martha Stewart, whom they walked into a jail sentence, would disagree.
      Truth is, corporate clients are in an even worse position than “lower tier” clients to know what distinguishes lawyers from one another, and to even know if they succeeded or not.

      • guest

        Good point Max. In personal injury or criminal, everyone can see which lawyers have a lot of big jury verdicts. In corporate litigation, most important pleadings are filed under protective orders, depositions are taken under protective orders, and then there is a confidential settlement. Most big firm litigators have never tried a case. You have no way of really knowing just how good your lawyer is.

        Re Martha Stewart. I’ve never defended a federal criminal case (I’m not part of the former AUSA club and I don’t take cases unless I think I can do a good job) but I don’t understand why they walked in with her for a meeting with FBI agents. I’ve always assumed that pretty much anything you say to an FBI agent can be construed as obstructing justice. In her case, it was.