A Healthy Media Diet For A Litigator: How You Spend Your Free Time Can Make You A Smarter, Better Litigator

Don’t kid yourself that professional development is limited to what you learn in the office.

As you recover from yesterday’s traditional solstice feast, this is a good time to take stock of your media diet. As with food, if you try to subsist on the equivalent of Twizzlers and French fries, it will eventually catch up with you. You won’t realize it right away, and quite possibly not until it’s too late, but it will gradually make you slower, dumber, and generally useless.

You will become particularly useless as a litigator, where two of the main job qualifications are quickly processing large amounts of information and coming up with novel solutions to a problem you haven’t seen before. Modern commercial litigators need to bring more than just the obvious solutions to the table.

The good news is that, with a little willpower, you can make a big improvement over time and become not just a better litigator, but a smarter one as well. But before you can take those steps, you need to first understand where and how you need to improve.


While we increasingly live in a society where we tell the kid picked last for the kickball team that he can be an astronaut — ultimately feeding into our $10 billion self-help industry — we know that’s not actually true. People can work, improve, and practice, but people also have their own ceilings and rates of improvement.

This is true in any field. Sure, LeBron James has a rigorous training regimen, but so does every other player in the NBA. One of the unfair aspects of ability is that the advantages tend to aggressively compound. LeBron was already outclassing his contemporaries in high school, and he never gave up that lead. Maybe he intuitively grasps the physics of basketball better than others. Maybe, like many elite athletes, his body recovers faster than most. Maybe he has preternatural hand-eye coordination. Most likely it’s a combination of all three and much more. But the vast, vast majority of people could practice 10 times as much as LeBron and never approach him.

In fact, practice often only compounds the inequality. Being good at something tends to create a positive feedback loop. You pick something up, you’re good at it, it feels great to make quick improvement, people tell you how special you are, and you want to keep practicing. When you’re bad at something, you often just make yourself feel worse the more you practice and fail to make the improvement you expected. Plus, people have different levels of stamina, sleep needs, and caffeine tolerance, and even work ethic itself is probably heritable.

So as great as optimism is, without a dose of realism you’ll waste your time chasing, if not unachievable goals, then at least your goals in a counterproductive manner. Different people not only have different strengths and weaknesses, they have different areas in which they can improve more or less quickly.


Luckily, you’re in a much better position being a lawyer than trying to make it in the NBA. But that doesn’t mean you should ignore the reality of your situation. Some lawyers like to joke about how law isn’t exactly rocket science, but even if that were true, litigation’s still a zero-sum competition. Even the dumbest child can easily learn the rules of Go, Chess, Monopoly, Settlers of Catan, Diplomacy, or whatever game you prefer as a metaphor. But if that dumb child plays a smart adult who is experienced with the game, they’re usually going to lose badly.

And while lawyering may not be rocket science, it’s still one of the most g-loaded professions. Whatever predictive powers and correlations general intelligence may or may not have, it’s at least a good description of many of the key skills of a litigator.

But you’re in luck once again. General intelligence is generally considered to consist of two parts: fluid intelligence and crystallized intelligence.

Fluid intelligence is your ability to figure out an entirely novel situation. It’s how fast you pick up new things and how quickly you make connections. Fluid intelligence is your ability to decipher a new puzzle that someone puts in front of you when you’ve never seen anything like it before. It also peaks as early as the age of 20. And while there may be ways to improve your fluid intelligence, it’s hard. So whatever combination of genes, environment, or social conditioning lead to your current fluid intelligence, you’re probably for the most part stuck with what you have by the time you’re a practicing attorney.

Crystallized intelligence, on the other hand, is what you know, and your ability to apply what you already know to an otherwise novel situation. It’s your ability to look at a new puzzle that someone puts in front of you, but you remember that you once read a book about a similar puzzle, and then you use that memory to solve the new puzzle. Crystallized intelligence peaks as late as the age of 70.

Crystallized intelligence is, in other words, how you get smarter from learning things. It’s the legendary Boies memory. This still isn’t egalitarian — fluid intelligence is in a sense your ability to quickly add to your crystallized intelligence; memory itself is heritable, although highly teachable through certain secret Jesuit techniques — but it’s a start.

And most importantly, crystallized intelligence compounds as you add more and draw connections. Maybe someone puts a puzzle in front of you that you’ve never seen it before, but you remember reading a book about puzzle strategy once. Then you remember some magazine article you read once about puzzle tips. Then you remember a few puzzles you’ve done in the past that aren’t quite the new puzzle, but they have enough in common with it to give you a further boost. Separately, each of those memories may help a little bit, but combined they build on each other, and get you much closer to the puzzle’s solution.


So you can get smarter. And better yet, you live in an age when you can access more knowledge, information, and analysis from your mobile telephone than you could absorb in a thousand lifetimes. The bad news is, so can everyone else you’re competing with. So spend your time wisely.

Luckily, as litigators, we already spend large portions of our day reading and writing, so that helps. It helps even more when dealing with the wide variety of commercial disputes my colleagues and I typically deal with; litigation being great because you learn all about a new business with each new case is a cliché, but it’s still often true. But if you just read legal briefs all day then go home and drink yourself to sleep while watching Survivor, you’re not getting a sufficiently well-balanced diet to help you build those mental connections.

I like to keep a healthy queue in Instapaper or Pocket, which I can then work through during downtime like commuting or walking. Then I fill it with whatever I come across that I find interesting, trying to cast a broad net. This does, and should, change periodically, but generally includes a variety of newspapers; a few blogs; some Twitter; and whatever else may be interesting. I also like to occasionally check the top few comments on popular news websites, especially ones that allow you to sort by most recommended. These days, they’re usually inane, but it’s interesting to see the consensus view a website’s reader’s may have on a particular topic.

It’s important to make time. Unless I’m truly swamped, I try to at least carve out time each day for Matt Levine’s newsletter, which usually gives a great analysis of the latest legal and financial news. RSS is still great and speeds everything up.

Everyone needs to find their own balance and what works for them. Someone who handles a lot of broker-dealer disputes probably wants to read more broker-dealer news than an antitrust specialist. But most important is simply gathering a large variety of thoughtful and well-informed opinions. You want to get a wide range to avoid a bubble, but reading the most popular comments on YouTube or Twitter isn’t going to do much good.

So now that the days are getting shorter and you’ve made your solstice resolutions, considering taking a moment to add one more. Perhaps the pickled herring won’t actually make you smarter, but better reading habits just might.

Matthew W Schmidt Balestriere FarielloMatthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is of counsel at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.