TBA Law Blog

Posted by: William Haltom on Mar 1, 2018

Journal Issue Date: Mar 2018

Journal Name: March 2018 - Vol. 54, No. 3

We lawyers talk. We talk constantly and incessantly.

Talking is what many of us do for a living. If you’re a trial lawyer like me, you are paid to talk. You talk to judges, talk to juries, and talk to other lawyers in conferences, mediations and negotiations.

We refer to our legal writings as “briefs.” But there is generally nothing brief about our statements in court or in client meetings or even in depositions.

Whenever I stand in front of a judge and say, “Let me be brief …” the judge often justifiably shakes her head and rolls her eyes. It’s like the time I was arguing a motion in front of Judge John McCarroll, and I began with the words, “With all due respect to opposing counsel …” At that point Judge McCarroll interrupted me and said, “I know what that means, Mr. Haltom. You don’t have much respect for opposing counsel!”

I had to laugh, because the judge was absolutely right.

No, the truth of the matter is we lawyers are never brief these days. We talk and talk and talk, generally without even thinking about what we are going to say.

But we’re not the only ones making all the noise in America during these noisy times. Everyone from the president of the United States on down (or perhaps up) is talking and tweeting and texting.

We all seem to have something to say, and often we are saying it when we really don’t have anything to say.

Well, at the risk of contradicting myself, let me make a statement.

I think it’s time that we lawyers should follow the advice the great Tennessee lawyer Howard Baker once received from his father-in-law. In the spring of 1967 freshman United States Senator Howard Baker gave his maiden speech on the floor of the Senate. At the end of his speech, the young Senator was surrounded by his colleagues. They shook his hand, patted him on his back, and congratulated him on a fine talk.

But the young Senator’s father-in-law, Minority Leader Everett Dirksen, did not join in the congratulations. He sat a few feet away at his desk on the senate floor, saying nothing. Finally, Senator Baker approached his father-in-law and asked, “Well, Senator what did you think of the speech?”

Senator Dirksen paused briefly. Then he looked the new freshman Senator in the eye and gave him some classic advice. “Senator,” he told him, “occasionally allow yourself the luxury of an unexpressed thought.”

The young Senator got the message. A leader should speak less and listen more.

Well, I think that’s a lesson not only for senators, but for lawyers as well. We should give ourselves the luxury of an unexpressed thought. I believe it would enable us to be healthier, happier and better lawyers.

First, to use another phrase I learned from Senator Baker, good lawyers are eloquent listeners. They communicate by listening rather than talking.

In our initial meetings with clients, we need to shut up, give our clients direct eye contact, and our silent undivided attention. Sometimes our clients simply want to vent about their problems. And as we listen to them vent, we can learn what the real issues are and come up with a plan of action, even if that plan is for the client to do absolutely nothing and keep his mouth shut till the storm passes.

Second, good lawyers practice the art of quiet, detached reflection. They don’t just fly off and start immediately filing pleadings and issuing discovery requests for every document the opposing party has ever read or produced. They think about the situation before taking action.

Third, good lawyers know the power of silence. Sometimes the most effective response to a situation is to say absolutely nothing. Ironically, saying nothing often speaks volumes.

Every good trial lawyer knows that one of the most effective cross-examinations of an opposing witness is to stand at the end of their direct testimony, look at the judge, and announce, “No questions, your Honor.”

The implicit message to the judge and jury is, “My client wasn’t hurt by that testimony, so I don’t need to waste anybody’s time asking any questions.”

Fourth, and perhaps most important, giving ourselves the luxury of an unexpressed thought will make us happier and healthier.

Mark Twain once said that America is the greatest country on the face of the earth for two reasons. First, every citizen has the right to say exactly what they believe. Second, most are smart enough to not do it!

Too many of us lawyers these days are spring-loaded in the angry position. We are angry about our cases or our opponents or politicians or generally about how the world as we know it seems to be going to hell in a hand basket. And we are anxious to bless out everybody in sight!

But anger and hostility get us nowhere. They simply wear on our soul. When we feel such anger coming on, most of us would be wise to take a deep breath and, yes, give ourselves the luxury of an unexpressed thought.

Well, that’s all I have to say this month. And now if you’ll excuse me, I’m going to shut the door to my office, sit back in my chair with my feet up on my desk, and keep my big mouth shut.
Don’t get me wrong. I have some more thoughts, but I’m going to try to keep them to myself.

Bill Haltom BILL HALTOM is a shareholder with the firm of Lewis Thomason. He is a past president of the Tennessee Bar Association and a past president of the Memphis Bar Association. Read his blog at www.billhaltom.com.