Skip to main content

David Epstein has been on my radar ever since his EconTalk podcast about his book, The Sports Gene. That episode led to a bizarre self-commitment to measure my future children’s forearms for an early assessment of their aptitude for water polo. Epstein’s new book, Range, has me second-guessing that wisdom, as well as the benefits of hyperspecialization and siloing broadly.

Serenity prayer optimize knowledge courage range wicked kindRange celebrates the generalist. From a world-class boxer that took four years off to train in dance, to Roger Federer’s early sports sampling, to a patent lawyer making a novel contribution to a molecular synthesis problem.

Epstein popularizes the concept of the “wicked” and “kind” learning environment, an idea from professor of psychology and decision-making, Robin Hogarth. Hogarth himself never received an undergraduate degree, but by all outward appearances, succeeded in academia. According to Epstein, you’ll find chess in the kind domain, as well as firefighting. Kind problems are domain-constrained with tight and accurate feedback loops. Kind doesn’t mean easy- there’s a long exposition on Tiger Woods and his golf development- a sport that is kind because you quickly know if you executed the correct stroke. Wicked problems are not readily computable- feedback loops are long, may not provide accurate feedback, and, in the most devilish of wicked problems, the feedback you receive may tell you that you are on the right track when you are not (Epstein takes a slight shot at academic publishing).

HogarthThe Rules of the Road. . .

We practice law in a nest of intersecting and complex rules. Constitutions, statutes, regs, binding court decisions, Rules, local rules, and custom. Due dates and elements of a claim are identifiable. This means a lot of the above is somewhat computable. Put one in the kind column. However, what happens in application?

. . . are Unpredictable

The Virginia Trial Lawyer’s Association had a great exercise at this year’s Convention- retired Fairfax Circuit Court Judge Stanley Klein posed dozens of evidence questions to a ballroom full of trial lawyers with a heavy peppering of judges. The room acceded to his demand that everyone in the room answer each of his evidence questions by holding an “admit” or “exclude” placard in the air. What should be disconcerting, (but I admit I found relieving- given my own accuracy) was that the room was often evenly split on whether each piece of evidence should come in. Even among the judges in the room, there was no uniform consensus as to whether the Rules of Evidence permitted the inclusion of the proffered evidence. Assuming you make it to trial, this is the picture of a wicked learning environment.

Range by David Epstein

Declining Trials

Further, we all know that trial rates in both civil and criminal practice are declining. (As an aside- I suspect family law is a huge exception, for reasons I should discuss in a different blog). Only about 1% of civil cases filed in federal court make it to trial. A significant percentage of the remaining 99% are resolved confidentially. Unless those few verdicts are representative or highly analogizeable, much civil work is done flying blind, at least statistically speaking. Put on top of that the ethical truism we recite at every client consultation or public advertisement. “Every case is different”; “Past results do not guarantee the outcome in your case.” The cases that ultimately go to trial will be the ones with the most uncharted fact patterns and the most divergent opinions on the value of the case. Another strike for the wicked domain.

More complexity

While there have been attempts to quantify the complexity of law, I stand by my non-empirical assessment that the longer code books, regulations, and opinions grow, law becomes not just more complex, but non-linearly more complex. Within emerging domains, specialists and subspecialists can and will thrive. However, these domains also provide more opportunities for the creative lawyer to use analogy from one domain to another to persuade or alter the course of a pending matter.

So what does this mean for the trial lawyer?

The best legal practitioners will use all the same skills that Epstein celebrates in his book- drawing from multiple (even, gasp! non-law) domains. They will still use systems to optimize performance in the kind domains, they will have their impeachment litanies reduced to muscle memory and they will know their exhibits and theories fluently. But lateral thinking will become increasingly critical in the wicked trial domain. While specialization in some domains may lead to extreme competition for the few types of “kind” matters (perhaps powers of attorney, uncontested divorces), more complex cases will benefit more from a computer-assisted deft lawyer. Think strategy vs. tactics.

In my practice, which is 80% domestic, I often draw off my much more superficial understanding of bankruptcy, collections, tax, benefits, and estates  to maximize legal benefits to my clients. The three years I spent working at legal aid getting a “general practice” background have proven useful to getting a more “holistic” outcome for my clients. There are certainly opportunities that I see my siloed colleagues miss. The lunches I have with criminal and med-mal friends help deepen my practice, and I hope my wild family law stories assist with theirs.

Remember learning about insects and their compound eyes? Many lenses working together to create a vision. Be “a fox with dragonfly eyes.” Know how to recognize a kind learning environment. Optimize and specialize ruthlessly in these domains. But also keep your eyes open so that you can recognize wicked domains, and prepare to make the most of them by broadening your horizons, incorporating many perspectives, and pounce, if not slyly, deliberately.

Devon Slovensky

Owner, Slovensky Law

Devon is a family law and trial attorney with interests in economics, politics, and evolutionary psychology. She also enjoys learning handstands and watercolors. She loves discovering and trying uncommon causes of action- examples include I-864 enforcement, partition of personalty, and spousal defamation.