Episode #198 – What They Don’t Teach You in Law School But Should. (With Dave Maxfield)

If you had the chance to tell a class full of fresh-faced, baby lawyers some of the things that they aren’t going to learn about in law school, what would you say? 

What do you think I would say to those new attorneys?

Find out in today’s episode, where I’m joined by my friend and longtime H2H Crewbie, Dave Maxfield, to give my best advice to the next generation of plaintiff lawyers. 

Enjoy! 

❤️ Sari

EPISODE 198 TRANSCRIPTION

Sari de la Motte:

Welcome everyone to another episode of From Hostage to Hero. I have back with us today Dave Maxfield from South Carolina, not California, which I continually think you're from California, but South Carolina. You got that big Murdoch trial that I'm following over there. When I think of South Carolina, I think of that. But welcome to the podcast.

Dave Maxfield:

It's great that's put us on the map. We've had so many things to recommend us. I appreciate the California shout out. Maybe I just have that California vibe. I hope so. I'm trying to cultivate it. You definitely got me to chill out a little bit over the past few years.

Sari de la Motte:

I love that.

Dave Maxfield:

The other thing I feel like I should say is I have this work shirt on in this dire background with bricks behind me. It looks like it's a video called Angola State Prison, where you accept collect call against your better judgment.

Sari de la Motte:

It's funny because that kind of connects, because every time I tell people that I work with lawyers, they all think it's the criminal cases and all the intrigue and whatnot. It's kind of on brand, not really, but there we are. We're going to bring Dave back later this year to talk about his book, The Lean Law Firm. But Dave asked me to speak to his class, which I did I think last year. And then this year for some reason it was at 4:00 in the morning. No, it wasn't at 4:00 in the morning, but it felt like it was.

I was like, no, I cannot do that my time, but let's do a podcast. That's why we're here talking about what we might want baby lawyers to be thinking about.

Tell us a little bit about how this podcast came about and what you're doing over there in South Carolina in the college realm.

Dave Maxfield:

Of course. They asked me a few years ago. My area of practice is consumer protection law. For four or five years, I've been teaching as an adjunct professor at the University of South Carolina School of Law and teaching consumer protection law. And then a few years ago, I think in 2018, I wrote a book with a friend of mine named Larry Port, who's a software guy called, The Lean Law Firm. What that book really was about was taking principles from the Toyota production system and other sort and agile, which software developers use, and putting that into practice in a law firm to make the law firm more profitable, more efficient, and hopefully less stressful.

They were kind enough a couple years ago to say, "Hey, would you like to teach this to second and third years?" And I said sure. I did that, and I've been doing that a couple years. Every year it iterates and gets a little different and maybe a little weirder, but a little better. We started talking about neuroscience and persuasion and things like that last year. Persuasion's maybe not going to be the right word and we can talk about that, but I had my old law partner that I practiced with for 17 years was a guy named Gene Trotter, who's a fantastic guy, kind of an Obi Wan figure for me. I'm going to swear because it's your podcast.

Sari de la Motte:

Yeah, go for it.

Dave Maxfield:

No holds barred. But he used to say, "This is a pretty simple job. It's about talking people into doing shit or sometimes out of doing shit, if you're in the counseling space." That got me to thinking and a few years ago looking at neuroscience. You've been doing that a long time, and some other people like David Ball does that too. I got really interested in that and included a unit, even though it's not in The Lean Law Firm, about, well, how do you go about doing that, because that's part of what lawyers do at least.

I thought last year I'll bring Sari in to talk to them about things, and the conversation just went there and other places too, because we were talking about goal setting, personal goal setting for students and things. It's the only time I've ever had a guest on the class. I think I told you this. You remember we lost the Zoom feed for a second?

Sari de la Motte:

We did.

Dave Maxfield:

For 25 kids went, "Ah!" There's this audible gasp from the crowd when they were hanging on Sari's every word because you started slow and you built up, and they were just enthralled. I thought, I got to get her back this year. I don't want to make you wake up at 4:00 AM. This is a good option for us.

Sari de la Motte:

We're talking today about... Well, you say what we're talking about. What do we want to make sure that we get and why would a seasoned lawyer want to be listening to today's podcast as well?

Dave Maxfield:

As a seasoned lawyer myself that was practicing a pretty long time before I started looking at what you were doing and then joining the crew later, there's a lot of things we have to unlearn sometimes. Some of those things I think come from law school. We get this very fixed idea of, well, what do lawyers do, and what does a lawyer act like, and how should we sound like, and what do we say? And then some of that comes from law school and probably TV too. But we got to unlearn a lot of those things when we go out in the world and talk to real people like jurors and things like that, and even judges sometimes.

I thought before people start learning and fixing in a lot of bad habits, maybe we could talk about how should we be talking to jurors? So much of your work is about communication and about I don't want to say persuasion, because I think it's more about motivation probably than persuasion. I think you talk about the distinction.

Sari de la Motte:

I think that's a big difference in my work and why people are drawn to it. Because I think as lawyers, but particularly as trial lawyers, you're trained or you're told... See, that's the thing. You're not trained, you're told you need to be very persuasive and that's what it is that you are supposed to do. And yet no one teaches you how to do that. And then it creates all this pressure on you to read all the books on persuasion and try to be charismatic. That leads to all kinds of bad things, like trying to become or use the style of the attorneys that you admire.

Now, I will say, especially since we're talking primarily to our younger lawyers, our baby lawyers, those who are starting out, those who are even still in law school, that there is a place in your growth that you will mimic your mentors, that you will try on the things that you have seen. And that is absolutely normal and it's oftentimes helpful, because you don't know what else to do. What you do is you just do what you see and that's great learning for you if you use it to learn and not use it in replacement of who you really are in developing your own style.

But going back to what we were talking about with the persuasion, I think it creates that type of pressure that if you do not know how to persuade, if you're not on top of all the neuroscience and all of the ways to use the gimmicks and how to touch your client on the shoulder and how to use the room and all the things, that you're going to somehow just totally blow it in trial. I think my work is all about slow down. We're just talking about people here, right? Just people. And not only that, but you guys have this huge... When I say you guys, I'm talking to plaintiffs because that's who I primarily work with and hope that your students become if they go to trial law.

But you guys have this huge advantage, and the advantage is that you stand on the side of the right, which if you follow me for a while, I say that all the time, but you literally hold people accountable for hurting others and not taking responsibility for it, which is one of the things that we've been trained as humans since we were little kids. Take responsibility for the shit storm that you've created. Now it's like you guys come in and you say, "Now we got to do that."

That creates some cognitive dissonance for me as I was putting my work together and I've been working over the years is, okay, if you guys stay on the side of the right, if this is something that humans have been trained since very early on that it's the right thing to do to take responsibility, why do you need to persuade? I mean, think about this. When someone really tries to persuade you into doing something, immediately we're like, okay, what's going on here?

Dave Maxfield:

Oh yeah.

Sari de la Motte:

Wait a minute, what's really happening? We immediately think something's up.

Dave Maxfield:

It almost creates a wave inside of your body when you want to do the opposite of whatever somebody asks you to do. It's kind of visceral. I think that's absolutely right. I think also, like you say, we want to imitate people and that's okay, but I also think some of the things... I remember taking trial advocacy class and learning some useful things, but then learning a lot of things later, I'm like, why did they tell us that? That's a horrible idea to do that. I think it's not that it's based on any science or human nature, but it's just tradition.

There's this heavy weight of tradition that goes with this as like, well, this is what lawyers do and this is how they've always done it. There must be some reason that they're telling me to do it this way. When in truth, maybe it's just because that's what we always did and nobody knows.

Sari de la Motte:

That and, which is very similar, it worked for that particular lawyer, right? I mean, even when you're out of law school, now we have all of these different books and CLEs and things popping up that are not particularly focused on a method that has the science behind it, but it's based on what worked for someone. And then it's created this whole method, okay, everybody go do this thing that worked for this one person, and it doesn't fit, it's not supported it, all the thing, I mean, I've always said, you can watch Gerry Spence. One of the best things is watching a Gerry Spence voir dire. But one of the worst things is watching someone attempt a Gerry Spence voir dire, because it's crazy.

I mean, one of the reasons that Gerry Spence was so great or is so great, I should say, he's not gone, is because he was really good at being Gerry Spence and that's what worked for him. And yet we tend to be in the cult of personality. I mean, the new Gerry Spence is Nick Rowley, right? Okay, well, then I'm going to go and I'm going to imitate him. It's not to say that Gerry or Nick doesn't have some really great things to teach, but it's when we become convinced they have the secret that we get into trouble.

Dave Maxfield:

Absolutely. Two things I think about that. One of them is these things that we do that we think, well, they did this and they won, so they won because they did this, they might have had success despite the fact that they were doing those things. Or like you say, because it works for them but it might not work for you. I think the first thing I think Gerry Spence would say or Nick would say would be... They're very different from each other. They have some similar characteristics. Gerry Spence in his book says, "You figure out who you are and you be that person."

Sari de la Motte:

Absolutely.

Dave Maxfield:

It takes some faith to do that, because he's really putting the real you out there. But to connect to human beings, other human beings, that's kind of what I think. If there's a secret sauce, maybe that's it.

Sari de la Motte:

I was just going to say, that's it right there. I mean, we see Nick in trial, we see Gerry in trial, and we're like, "Oh my God, look at that thing he did." And then we go try the thing and it fails spectacularly, and then we're on the endless search for the thing. When what it really is, is that Gerry's just being super authentic and really communicating with the jury, and so is Nick. And that everybody has to find their way of doing that. It's the confidence. It's the ownership of the courtroom. It's being comfortable in your own skin. Those are the things that translate to a jury, because we have to understand that a jury is there and they don't want to be there.

They're hostages. Wrote a whole damn book on it. They don't know what to do. They don't know how to do it. They don't want to do it. They're looking for somebody to get them out of this mess. Now, if you're standing up there and you're nervous, and you're trying on a gimmick, and you're just trying to persuade, you're not getting it. These are people who are scared. You know more than they do. Get in there and just own the shit out of that, whatever that looks like on you not trying to be someone else.

But this goes back to your original thought of the persuasion versus motivation, which we talk a lot about in the H2H world, which is that said, we don't need to persuade because we know that you're on the side of right. The easiest thing for humans to do is to do nothing, is to leave things as they are. What makes your job as plaintiff attorneys so difficult is that you have to get jurors to do something when the easiest thing is to just leave things as they are. That is where you do need to be really well versed in how to motivate people, but I think that's a very different... Even though it may have some characteristics of persuasion, I think it's a whole different energy. Would you agree?

Dave Maxfield:

I do agree. Let me mention before we go too far, because we're throwing acronyms like H2H out there, Sari wrote a book that's a fantastic book called, this is for my class, everybody in the podcast knows this, Hostage to Hero. That's exactly that premise. It's the people who are being called upon by society to be the decision makers in a jury trial. Maybe they got other stuff they want to do and they don't want to be there, and they don't want, especially in a case where there's some big stakes, the weight of that decision making on them. Think of what people are called on to do. You decide if this person is guilty of murder and things like that.

There's some big things that regular people have to do and it's stressful. People don't like it. Sari wrote a book called From Hostage to Hero that in a state like South Carolina, which has really very, very limited voir dire and really almost no attorney conducted voir dire is still incredibly valuable because it's really about exactly that, how do we deal with other humans throughout all stages of the trial and how do we talk to them humans and make our case? I do want to make a disclaimer too.

We talk a lot about your audience as plaintiffs' lawyers. I'm a plaintiffs' lawyer. Some of our class is going to be, but some of them are going to do all kinds of different things. Like you were going to be a concert pianist at one point. Remember that?

Sari de la Motte:

Right.

Dave Maxfield:

In my class, who I'm talking to, you all might do all kinds of things, and you might be on any side of things, but it's still being a human being regardless of what you're doing is always what comes first and dealing with other human beings. We talk a lot about here are some things not to do, don't try to be somebody else, but what are some things that... Since we can learn from square one, what would be some things you would say are the right things to do that are universal to human motivation?

Sari de la Motte:

Well, I think what you have to understand about humans and brain science and all the things is that there's one person in a juror's life, or we could just say in a person's life, that can talk them into anything, that can get them to do anything, that they believe over everybody else. And that person is them. It's us. We know cognitive bias, for example, or when you're in the beginning of trial, we know that people make up their mind by the end of opening statement, and then they use the rest of the trial to just confirm how smart they are. We all do that right with everything. We go, "This is how it is," and then we take in more information not to go, "Oh, maybe I'm wrong," but to go, "See?"

And we throw out the ones that we don't think fit our narrative. So many people over the years, this is such a great example of the difference between persuasion and motivation, have tried to game the system and be like, okay, but I can persuade them out of that, or if I'm really persuasive, I can get them to change their mind. The way that H2H works is instead of trying to go against the grain is to work with the brain science and recognize that they're going to convince themselves, so why don't we make trial about them? It's all about the jury. Because isn't that what trial's about? It's about the jury.

It's about the world we all want to live in. I mean, y'all get so myopic in your view of what you it is you're doing. It's like, well, I'm doing this to pay my bills, or okay, bigger, I'm doing it for my client. But what you're really doing is changing the world. I mean, I really believe that about trial lawyers. That's why I have such a big fucking crush on y'all. When you're doing that, it really is about the jury. It's about the world they want to live in. The easiest way to motivate anyone to do anything is to show them how they can live a better life, how they can live a better world, how they can be part of changing it.

Part of that motivation is, yes, making it about them, but also you got to get damn excited about it. You got to be so excited about this world that you're creating, this thing that you are fixing, this mistake that you are writing that the jurors can't help but get engaged. Talk about when I was there talking to your students and everything cut off and they had that audible gasp, it was because I'm excited about what I'm talking about. I always ask when I'm working with speakers, for example, I say, first question before we even get into what you're going to talk about, what do you want the audience to feel?

They're taken back. I said, "Because whatever you want them to feel, you have to be feeling that. If you want them to be excited and motivated to take action, you got to get excited and motivated to want them to take that action. You want them angry, you got to be angry." It really comes down to falling in love with your case and this new world that we're creating. I'm doing it through helping trial lawyers. Other people are doing it other way. But I think that's the motivation is that this has got to be exciting to you and you've got to make it about your listener. That's the key for any speech or presentation.

It always has to be about the audience. That's why so many speeches are shit, especially legal ones, because people just stand up there and they either do one of two things. It's war stories in the legal world, "Well, here's about my last trial, blah, blah, blah," or it's just disseminating information. Here's just this information that I could look up in a book or Google, but now it's coming out of your mouth. I remember I was working with a lawyer on a CLE and he's like, "I'm doing this CLE on Medicare," and I was like, "That sounds super exciting." He's like, "Yeah, they asked me to do it." I said, "Okay, so what are you going to tell them?"

All the things. I said, "Could they find that somewhere else without it coming out of your mouth?" He's like, "Sure. There's all these things." Same thing I'm sure on consumer law. There's places where they can find the information. I'm like, well, then why do you need to do this? Exactly. He's like, "Because they asked me too." I'm like, that's a shit reason right there. What are you going to add to the material? What are you going to say? Okay, here's the consumer law, but here's where the pitfalls are, or here's where a lot of people go wrong, or here's how you can use it to your advantage, or here's how you can be strategic.

It really is about getting excited about your content, offering something new, but always, always, always making it about the listener. Always.

Dave Maxfield:

Right. I love that. What I want to do actually, what you said just reminded me of something else that you've said before, so I want to jump into that. But there's like I want to say one thing and then I'm going to get you to say two things. The one thing I want to say is you're going to think, guys, when you get out into the world and you're a lawyer, you're going to write down all this stuff on your pad, and you're going to go up in motions argument, or whatever you're getting ready to do, and you're going to be like, "I got to memorize this stuff. I got to get through all of this stuff. I got to say everything in the order that I put it in that I wrote it on my computer."

One of the things that Sari has taught me that is transformational in a lot of ways is no, you don't. Don't feel like you got to follow a script. You're going to be much more authentic unscripted. Know your case. It's fine to have some notes if you need that, but don't feel like you got to go... I mean, you know it. Let the universe work through you. Because your greatest fear as a lawyer is you're going to get up there and go, "Uh, uh, uh, I can't remember what I was going to say." And if that ever happens to you for a moment, just own it and move on. But you know what you want to say and it will happen through you and you won't even remember it.

Sari de la Motte:

You are more likely to go, "Uh, uh, uh," if you're trying to memorize and then regurgitate what you memorize. You are more likely to do that. Most attorneys that I sit down with and they're like, "Well, I want to write this whole thing and memorize it," I'm like, "Stop. Tell me about your case right now." And they go, "Well," and they just start talking. I'm like, 'There it is."

Dave Maxfield:

Like you tell me, and I have begun to do more and more, when I'm prepping something that I'm going to have to go and talk to other people about or a judge about or a jury about, don't just sit here buried in my computer typing away, typing an outline. Get up on your feet when you're prepping, get a whiteboard or something like that, and practice what you're really there to do. Be on your feet because that's going to transform into when you actually have to show up in court and do your thing much better than some kind of a script. Don't feel like you got to follow a script or a recipe because you lose all...

Sari de la Motte:

That's a great point though, because that's what you all do. You just type it out and then you read it, and you type it and you read it. Going back to piano, which is what my instrument is, that would be just me sitting and looking at the music over and over again, the sheet music, just looking at it. There are some very famous performers who do that when they're traveling after they practice. They're looking at it. They're learning it. And then they get to the piano. They never just stand out on stage and just looked at the music. They actually have to get the piano under their fingers and play it. But somehow y'all think this is how it works.

I read it, I type it, and then I stand up and I deliver it. And then it was shit and I don't know why. Practice getting in the muscle memory of delivering it. Even though it feels weird in your office or your dorm room or wherever you are, you've got to do that. You've got to do it.

Dave Maxfield:

Absolutely. And that was one thing. The things I want you to talk about, I'm going to give you the easy one first, and then the one we'll get in a little bit deeper and more sciencey sounding. You have a method that I thought was really good and it's helped me as a teacher. It's kind of like, well, here's a very simple little template for... We'll use a few templates like how to teach anything, and one of them was like... You want to hit that real quick, because I find that that's a very simple little way of preparing something that's not scripted, but you are following a pretty useful little formula maybe?

Sari de la Motte:

Yeah. I've taught that a bunch of different ways. I think transformational teaching is what I call it, is how to deliver information in a way that actually creates a difference that makes the person learn it or want to do something with it or whatever it may be. This may not apply to court necessarily. It could, but I normally tend to use this with people who are putting together CLEs and so on and so forth. You can put these three pieces together in a variety of ways. But the basic gist is you start with, here's the problem. Here's the problem. Lawyers are looking to get the gimmicks, the information. They go from CLE to CLE, and they buy all the books, and they continually come up empty.

The reason for that piece is because immediately my audience is like, "Oh my god, that's me." I have so many people who email me and they're like, "The reason I listen to you is because you have me nailed. You know me." Notice, you have to know your audience to be able to do that. Anytime I get asked to speak somewhere, I'm like, tell me about the audience. What are they facing? You say, here's the problem, and then you talk... Before you get to the solution, so I guess it's kind of like part A under one, is you talk about how they try to solve it. Maybe the problem actually is, we want to win trial, and the way they try to solve it is by going CLE to CLE or buying all the books.

Then you say, "Here is the actual solution. It's not doing that. It's becoming authentic. It's trusting yourself. It's believing the jury's not your enemy and that they do want to help you if you just know what to do." And then you can give them three pointers on how to actually go about trusting the jury or becoming authentic or whatever it may be. But the piece that I tend to find is that people just go with the solution. They're like, "Here's this new thing," or just the problem, "We have a problem."

But it's when you put all them together, those three parts, where there's the problem, there's how we normally try to solve it, and then here's the actual solution with some concrete things underneath, people can actually leave your seminar, your class, your CLE feeling like you understand them, which makes them... Again, talking about motivation. If I feel like someone gets me, I am more likely to listen to what they have to say, and then implement the things that they're telling me to do. Is that what you were asking about?

Dave Maxfield:

Yeah. It's sort of like, here's the problem, which shows I understand what your particular issue is. I'm speaking to you. Here's what we normally try to do to fix it, but that doesn't work. What do we do instead? We're big sometimes on rule of threes, which I'm a pretty big believer in, and three bullet points is like... That's just perfect if you can make things simpler rather than harder. The other thing I think we do that I have to fight hard against myself to do is to overbake the daylights out of everything.

That's what new lawyers do. I've gotten better and better and better, but better and better and better means less and less and less and simpler and simpler. I got a long ways to go. But rule of threes is one of those things that it ain't going to hurt you if you follow that through your career, I don't think.

Sari de la Motte:

Absolutely. Again, going back to brain science, the brain remembers in threes. Threes for some reason are better than even two or four. It's just like three is the magic number. You're right. I mean, you know that people come into some of the events we have in the H2H Playground™ where we're practicing these things and they've totally been with me for a while and they've totally simplified it. They come in and I go, "Isn't it just this?" They're like, Damn it. It's even simpler. It's even simpler than I thought." Again, we come back to that fear. I think that fear starts in law school. You're spending a shit ton of money to get this degree.

Let's say you're in your second or third year and you're like, "I don't even know if I fucking want to do this anymore. This is so not what it's like on television." Right? But you have to do it because you've spent all this money, so now you're depressed and broke. Then you get out of that whole thing of this pressure to a new pressure, particularly if you become a trial lawyer, where, okay, now I have to win because I put all this money. There's always this shadow I see following you, and it starts in law school.

Dave Maxfield:

And if I don't win, what does that say about me? Am I fake of some kind? You're going to lose sometimes if you're doing hard stuff.

Sari de la Motte:

If you didn't want to be a loser, you shouldn't have become a lawyer. That's what I always say.

Dave Maxfield:

Right. I mean, that's the deal though. You're going to.

Sari de la Motte:

It is the deal.

Dave Maxfield:

It is. I think it always makes us better when it happens. I have learned so much more from losing things than winning things, because you got a better idea of what didn't work maybe or what you can change and it spurs some growth. But also when you win, you might have done something horrible and stupid and gotten away with it and you might not next time. You don't learn that that way.

Sari de la Motte:

Right, or you learn the wrong thing. You're like, oh, I'm going to do that again. And then you're like...

Dave Maxfield:

I'm going to do that again, and I'm going to do that again.

Sari de la Motte:

It's all about experience is what my point is, is that whether you win or whether you lose, we're always looking to learn and improve. The rant that I go on all the time is y'all are just complaining about losing. When's the last time you got up and tried your opening statement? When's the last time you actually did a voir dire with mock jurors? None. Once. It's like a basketball player coming in and saying, "Oh, I went to one practice and I lost and that fucking sucks." I mean, come on now. That's the big thing I think that people don't realize, that you need to realize, students, if you're going to become a trial lawyer at least, is that this is a craft.

This is something that you have to work on and then consistently put practice in and constantly be looking, just like you said, to simplify, to stand up, to do all of the things so you get better and better and better. But, and here's the big thing, once you get in trial to let all of that go, right? Michael Jordan, one of the best players ever, practiced his heart out. He totally wanted to win. But I can guarantee you right now, when he was actually in the game, he wasn't thinking about winning. He was thinking about how he was shooting the ball, where he was doing the sportsy things, because I'm not good with my sports.

But you know what I mean? He was thinking about that, not, "Oh my God, I better win because then what are they going to think about me as a basketball player?" All that went out. He's focused. And that's where I see a lot of you go wrong is because you're so worried about what losing means. This fear, it started all the way back in law school with this huge debt you have hanging over you. Then you go and now you have this trial. Again, it's a crushing profession you all have been chosen, but it's also amazing.

Dave Maxfield:

I'll tell you, here's a secret too I think, that when you really... It is very, very possible to go and do a very good job and not lose and then lose still. You think when that happens that it's going to be devastating and terrible. What you find out is when that happens is it's not at all. It's like I left it all out in the field. I did everything I possibly could. I think I did a pretty good job. Like the samurai... Maybe not like the samurai, but you got to let go of the result if you can.

Sari de la Motte:

Absolutely.

Dave Maxfield:

Let's get sciencey for a second if we can. Even though we both have liberal arts degrees and don't really know anything about science, we can act like we do for a minute. Actually the book and the group, we do talk about brain science some and sort of like, well, what do people do? It turns out we're pretty weird. But is there a couple of things you could talk about in terms of brain science that you found to be particularly useful for lawyers and also just people who have to navigate the world generally?

Sari de la Motte:

I mean, the number one thing I think that everybody needs to recognize about their brains is that y'all's brains are fucked. My brain is fucked. Everybody's brain is fucked.

Dave Maxfield:

That is the scientific term for it.

Sari de la Motte:

Yes, exactly. Now we're showing off our sciencey skills. But it's fucked in that, I mean, it works great, it keeps us alive, it does all the things, but in terms of living in our modern world, it hasn't quite caught up yet. The reason for that is that its number one job is to keep you alive. The end. When you choose lawyering and in my world trial lawyering, you've chosen a career that is full of risk and change, and those are the things that the brain hates. Now what's happened with your brain is it's trying to keep you alive and it doesn't want you to do anything risky, and it definitely doesn't want you to change anything, because change is scary.

You're constantly up against this brain that's trying to prevent you from doing the very things you have to do to be successful in the world or in your career as a trial lawyer, or just even if you're not a trial lawyer, just in the world. We live in a world that's full of risk. The ones that are successful in our modern world are the ones that take the risks and go big and play big. And yet your brain is wired to do the exact opposite. I see that that is probably the biggest issue that trial lawyers have to overcome is because they don't know how to manage and work with and, here's the coolest thing, rewire their brains because it's totally possible to rewire your brain.

Dave Maxfield:

Okay, well, tell us how to rewire our brains, because I know one of the things that we talk about sometimes to get... I actually have a science word here, I think it's triune brain theory, where you have the primitive amygdala part of your brain, that's the reptile brain, that is kind of in some ways calling the shots sometimes. We have this really good cerebral cortex that can rationalize all kinds of things. But when we get into a room and somebody starts trying to get us to do something, we go, "I don't want to do," that visceral part of us that doesn't like change is what's talking at that point, and then the cerebrum and the rest of us is just there to give us good reasons why we're right.

Sari de la Motte:

Exactly.

Dave Maxfield:

How do we fix it?

Sari de la Motte:

Well, that frontal cortex is that logical part of the brain, the front part of the brain, the newest part of the brain. The problem is the prefrontal cortex works best when it's rested and fed, when things are always good. Now, I don't know about you, but most lawyers are not normally rested or well-fed or not under stress. Immediately when we are under stress and we're hungry and we're tired, the amygdala takes over, because now we're in our fight or flight response and it starts calling the shots. That's what the problem is. That's our habit brain, right? Because that's the part where we don't have to think.

It keeps us alive too, so it's great. It keeps our heart beating and our lungs taking in air. But the way to reverse that partly just right off the top is to get more rest and feed yourself and manage your stress. I mean, that's going to help your prefrontal cortex operate well. But some of these things that are wired in... We have to talk about neural pathways. The way we can rewire the brain or the way we know we can do that is we know that we have neural pathways where those signals are being sent, but we know that new neural pathways can be created all the way until the end of our life. Now, the bad news with that is that we never get rid of the old neural pathways.

When we are under stress or tired or whatnot, we're going to probably default to those until our newer ones become more habitual. Now, how do you do that? Well, you start thinking differently. You start doing things and recognizing, like you said, oh, I can lose and it doesn't mean that I'm going to die. I can go in front of a jury and they can hate my suit and I'll survive. You train your brain to know that this isn't scary. I mean, it is scary, but it's not going to kill me. You get more and more willing and able to do those things and you kind of bring your brain along. But the big thing in creating new neural pathways is it has to be something that's consistently done over and over and over again.

Consistently telling yourself, "I've got this. I can do this." Consistently showing yourself by doing the thing. Consistently losing at the thing and knowing that you're going to be fine. All of those things. It's really about the consistency piece of it.

Dave Maxfield:

When you think about what the military does, when they're training people to be in terrifying life-threatening situations, they don't do it by saying, "Sit here and read this book about terrifying life-threatening situations." They do it by exactly putting them in simulated situations like that to get those neural... I mean, what they're really doing is getting neural pathways laid down to retrain...

Sari de la Motte:

Rewiring their brain for warfare.

Dave Maxfield:

Yeah, that experience. And that is very possible. I know you don't have an unlimited amount of time, so I want to get to this thing that we have coming out of law school and as lawyers lots of times where I guess I'd call it overbaking or overpreparing, where we think... Because you just mentioned rest and stuff like that. We think, okay, well, I got this big hearing tomorrow. I got a trial starting. What I should do is stay up all night and learn everything and be 100% prepared for this. And then I'll go from there and be ready to go, and that's the best use of my time.

What I've learned the hard way is that much better for me to not be, and I'm going to let you talk about, 100% prepared, but better to be prepared, but rested and having my resources available to be able to think on my feet. That can only be possible if you're in that good rested state where you're taking care of yourself and then just let things work. Let the brain and the body and your voice do what it's designed to do in that situation. I think that's very true. Tell me if you agree with that, but tell me also, can you be 100% prepared for anything? Do you think?

Sari de la Motte:

Absolutely not. I mean, that's the thing is that y'all are chasing this thing you're never going to get, because what you're chasing is not 100% preparation. What you're chasing is a feeling. There's a feeling that you want to feel that you think you're going to get at 100% prepared, but the thing is you can always prepare. You can keep preparing. You're never done preparing. It can go on forever and ever. There's still more to learn. There's still more to practice. There's no end point. And that's why it's so insidious, is that it's like you have this... You hear it from big trial lawyers, they're like, "Well, the reason I won is because I was so damn prepared."

You think, oh, I just got to prepare, and that's what my thing is preparation. It's not possible to be 100% prepared. What we teach people in the H2H world is to decide for yourself what that means. What is it going to take so that you feel you're ready? You've got to really struggle here with your brain, because your brain's going to be like, "Nothing. I've got to be up all night." It's like, no, no, no, no, no. What's realistic? Because here's the second thing if we're going to be all sciencey and this is what everybody needs to understand is called the gap.

If you read about any of the big scientific discoveries, and they may have called it a different word, but this is the basic gist, all of the big scientific light bulb moments happen during the gap. This is what I mean. The scientists are in their laboratory and they're doing all their sciencey things and they're in there for 16 hours. They're like, "Oh my God, I'm so tired. I'm going to go take a walk." They're on their walk, boom, drops in. They're like, "There it is." You guys are just prepare, prepare, prepare. But when you would just stop, have lunch, go on a walk, then that great strategy you've been looking for, that whatever, is going to pop in your brain.

We just know because you've rested the brain. It has room now. People come to me all the time, "Well, I've tried to meditate and I can't do it." I'm like, well, no shit. That's why they call it a meditation practice. Nobody can do it. But why does all the stuff come up when you try to quiet your brain? Because you've been thinking all this time and finally you're quiet and your brain's like, "Oh, now I can talk to you. Now you're quiet." You're like, no, no, no, I don't want to talk to you right now.

But my best stuff comes up during meditation, to the point where I just take a little thing and I write it down and then I go back to meditating, because my brain is finally quiet, or at least trying to be quiet. That's when all the good stuff bubbles up.

Dave Maxfield:

The thing I've discovered in maybe the last five, six years is the best tool I have for trial preparation or thinking about a case is a notebook at my bedside table with this pen that my wife wants to blow up with dynamite that has a little light on it. Because I'll wake up at 2:00 in the morning and I'll be like, "Oh, I just thought of something great in this case." I just write that down. It's like your subconscious seems to be working on these things all the time without... When you just let it happen, it's bizarre.

I don't know if it's one of those things where the universe is just giving you answers and we can get all new age about it or what, but it's probably just that the brain's really dwelling on these things in the background, and then it comes up with something and it gives it to you and you're like, "Oh, where did that come from?"

Sari de la Motte:

I think the brain is always working in the background. It's just we never give it an opportunity to tell us what is coming up with, because we're all in the conscious and doing all our stuff and the subconscious wants to tell us something, but we don't ever give it a chance. That's why it will come up during sleep or during rest periods or during walks. I mean, I don't have any scientific studies on this, but I do know that people in H2H are winning more and working less. And that's so bizarre for them.

When they come in, I'm like, "Do less, work less, prep less." They're like, "Ugh." It's like the crutch. But then when they start to do it, they're like, "Oh my god, I'm more rested. I'm more focused." I mean, you are the person who has to perform at trial or in front of a judge. You have to be your number one priority. That's the number one thing.

Dave Maxfield:

And you're the person that has to have a life outside of all of that too. That has to be even.

Sari de la Motte:

Absolutely. Because jurors have lives and you need to be able to connect with them. You can't be a robot.

Dave Maxfield:

I love doing this, but if we did it all the time, there's got to be some other stuff we do too. I think our books have that in common in that I really wanted to give people like, here's how you can do the same things, but maybe have more of your own time to do other things that you want to do too. And guess what? Those other things will make you probably better at the first thing. Well, let's do this. We've got just a few minutes left, I know. Since we love rule of threes, what are three things that we would tell or that you would tell the students to leave them with, or baby lawyers, young lawyers, and see if we could come up with those together maybe too, I got some too, but what are your three?

Sari de la Motte:

Well, off the top of my head, because I didn't prepare this, so you're just asking right now, the first one is learn how to manage your brain. If you do that, you will be more successful than you will ever know. That could be a variety of things of reading about it or doing all things. But for me, the number one thing, and I've had podcasts on this, is you need a coach. I mean, I will never not have a coach. A coach helps me continually see my patterns and create new neural pathways. Coaching is so, so important to manage your brain. If you do not know how to manage your brain, you're going to have a very unhappy life, yes, but particularly career.

Number one thing, learn how to manage your brain, however that ends up being for you. Number two is to always trust your own voice. Always. When something is saying, "This is the wrong thing," or somebody's telling you to do something, you're like, "That doesn't feel right to me," follow your voice always. I mean, that's just never going to lead you wrong. Before I go to three, is to have your own back. Just have your own back, because you're the number one person you got to keep in. Number three is to live a fulfilling life. Listen, I went through cancer, two cancers. Kicked those son of bitches in the face.

But I mean, I know now that life is precious. We all know that. And then you get a cancer diagnosis, then you really know it. But I mean, I'm not fucking around and going, "10 years from now, then I'm going to do all the things I enjoy." Do them now. Do them in law school/ do them when you're a baby lawyer. Do them now because nothing is guaranteed. Constantly, and coaching can help there too, be looking and chasing your fulfillment because the way we live our days is the way we live our life. That would be my three things.

Dave Maxfield:

I can't top that. I'm not even going to try to add to that. The only thing I would say overarching all that is if you can try to chill out a little bit, it's going to make your life better. We put a lot of extra things on ourselves that not only make life less pleasant, but they make our jobs harder too. Getting rid of those tendencies. A coach is super helpful for that because they're objective. They can see us doing...

Sari de la Motte:

I know lots of brand new coaches that are looking for clients and will take you at $10 a session. If you guys want a coach, if you're serious about that, just email me at [email protected]. Those you law students, even some trial lawyers, if you're like, "I'm really on limited budget," I've got some new coaches, not here in H2H, but in my CTI community, the coaching that I'm certified in, that would love to take you. That is going to help you even with a new coach, it's going to be super helpful.

Dave Maxfield:

Well, that's great advice. Once again, I owe you a big thanks because you have talked to my class and knocked it out of the park. As I've told you before, you've done a lot for me personally too just in making this job a lot more that I already like way more fun. Thank you for that too.

Sari de la Motte:

I'm so glad. I'm so glad. We'll bring you back for a discussion on The Lean Law Firm. If people are like, how do you get on my podcast? I don't know. Just be interesting and be my friend, and then I invite you.

Dave Maxfield:

Be annoying. Email Kristi Foster a lot.

Sari de la Motte:

Thanks for being with us. I hope that's helpful to your students, and I hope that's helpful to our listeners. We'll talk next week. Thanks, everybody.