Mary Massaron

For the Defense, "On the Record"

02.01.2011

Anyone who knows me knows that I love to read. For many years, my reading list has included both fiction and what those in creative writing circles call “creative nonfiction.” This genre includes the works of writers like John McPhee, Norman Mailer, Tracy Kidder, Jonathan Raban, David McCullough, and others who have imported novelistic techniques into the writing of books of fact. One of the first writers to achieve fame and fortune by writing nonfiction in this way was Tom Wolfe, and one of my favorites is his marvelous book The Right Stuff. You may have seen the 1983 Oscar-winning movie adaptation starring Sam Shepard, Ed Harris, and Scott Glenn. Wolfe reports that the book grew out of his fascination for why “men were willing—willing?—delighted!—to take on odds” such as the “23 percent likelihood of dying in an accident” that faced Navy pilots at the time. In fact, “there was a better than even chance, a 56 percent probability, to be exact, that at some point a career Navy pilot would have to eject from his aircraft and attempt to come down by parachute.” He wanted to understand what drove these men to pursue such heroic activities—and what qualities those who succeeded shared. The “right stuff,” was “not bravery in the simple sense of being willing to risk your life.” It was more an encompassing ethos based on a combination of attributes including experience, focus, discipline, and ability to perform under pressure:

The idea here (in the all-enclosing fraternity) seemed to be that a man should have the ability to go up in a hurtling piece of machinery and put his hide on the line and then have the moxie, the reflexes, the experience, the coolness, to pull it back in the last yawning moment—and then go up again the next day, and the next day, and every next day, even if the series should prove infinite—and, ultimately, in its best expression, do so in a cause that means something to thousands, to a people, a nation, to humanity, to God. Nor was there a test to show whether or not a pilot had this righteous quality. There was, instead, a seemingly infinite series of tests. A career in flying was like climbing one of those ancient Babylonian pyramids made up of a dizzy progression of steps and ledges, a ziggurat, a pyramid extraordinarily high and steep; and the idea was to prove at ever foot of the way up that pyramid that you were one of the elected and anointed ones who had the right stuff and could move higher and higher and even—ultimately, God willing, one day—that you might be able to join that special few at the very top, that elite who had the capacity to bring tears to men’s eyes, the very Brotherhood of the Right Stuff itself.

DRI’s members share some of this same ethos, although the risk that we deal with comes not from the chance of physical injury or even death. It comes from the possibility of losing a high-stakes lawsuit. Lawsuits are figurative battles, and like a fighter pilot, the lawyers who venture into the courtroom for a motion hearing, or a trial, or to argue an appeal must perform in a high stress, high risk, and occasionally unpredictable environment. When the newspapers characterize a case as bet-the-company litigation, they are articulating what may be literally at stake. I recall working with a litigation team on a bet-the-company lawsuit several years ago and as we were discussing oral argument strategy, one of the in-house attorneys said to me, “Our lives and livelihoods are at stake. We will all be without work, if we lose.”

Those who try cases or argue appeals must have “the moxie, the reflexes, the experience, the coolness” to come through at these critical moments. Lawyers must try to prevail in the face of unpredictable witnesses, unexpected testimony, unfavorable rulings from the trial judge, and changes in precedent that weaken or even eliminate their best legal theory. How do they do this?

On the plane ride home from DRI’s 2011 Committee Leadership Meeting, which took place in Chicago in early January, I read another book on performing under pressure called Clutch: Why Some People Excel Under Pressure and Others Don’t by Paul Sullivan. Sullivan defines clutch as “the ability to do what you can do normally under immense pressure.” And he associates this ability with a combination of focus, discipline, adapting, and being present that enables the clutch player to perform despite enormous stress because of what is at stake and the difficulty of the job. These attributes of clutch players do not magically appear one day— nor are they inherited traits that simply exist or don’t. Sullivan explains how they can be learned. According to Sullivan, “[u]nder pressure, sound fundamentals matter more.” Just as golfers can fix their problems on the driving range, lawyers can improve their ability to perform under pressure by learning the fundamentals from masters of the profession. And just as the best fighter pilots have succeeded at a series of difficult tests after long years of training, the best lawyers learn through years of experience and study.

For lawyers engaged in the defense of businesses and individuals in civil litigation, one of the best ways to become a clutch player with the right stuff is by joining DRI, and becoming actively involved in its substantive law committees. DRI’s substantive law committees offer a wealth of resources that can help speed up the learning curve. Currently, 29 substantive law committees exist. DRI’s seminars are largely planned by the substantive law committees with the active involvement of the DRI Law Institute and DRI’s highly professional staff. Many of the articles in For The Defense and In-House Defense Quarterly are written by members of DRI committees. The substantive law committees put on webcasts and write monographs, compendiums, and other publications that provide critical information about cutting edge legal developments and strategies for litigating in the wake of the changes. The substantive law committees recruit writers to prepare articles for dritoday.com. They are the best place to find all of the resources necessary for finding clutch players with the right stuff, or to becoming one if you have not yet reached that elevated status. DRI provides a chance to meet, work with, and learn from some of the best lawyers in the country. And its substantive law committees are the best place to find those practicing in fields in which you practice.

My view on this was absolutely con-firmed at this year’s committee leadership meeting. I had the chance to meet some masters in their fields in Chicago, and to hear their plans for a productive year of service to DRI members. At the meeting, chairs and vice chairs of the substantive law committees come together to talk about their plans for the year, and to meet with each other, with DRI’s officers and staff, and with the DRI board members in attendance. At this year’s meeting, the committee leadership talked about plans for seminars on toxic torts, medical malpractice, product liability, employment, insurance, damages, and other substantive and procedural topics. They discussed many other initiatives and projects for DRI members. You can learn more about the DRI substantive law committees and how you can get involved by going to DRI’s website.

DRI lawyers regularly tell me they love their work—in spite of their stories of witnesses who fall apart on the stand, judges who exclude their best evidence, or run-away juries who occasionally award mega- verdicts against their clients. They bemoan the vanishing jury trial, and long for the next case that goes to trial or the appeal in which they can deliver a winning oral argument. They show up in court focused, disciplined, ready to think on their feet and adapt if necessary, and fully present in that moment. They learn to be clutch players as Sullivan says. They show, in trial after trial, and appeal after appeal, that they have the right stuff. If you have not already done so, you should join the many clutch players we have in committee leadership and become involved in the substantive law committees of your choice. Your active involvement will help make sure that you have the right stuff next time you are in court.