My father is a minor celebrity. He’s a successful artist. He has a television show on PBS. He’s won an Emmy. He’s taught at the Metropolitan Museum of Art. When asked to talk about painting a picture, he has a singular message: Follow the paint. What does this mean? It means that, of course, you start out with a plan. You have an idea for a painting — a foundational concept. It may be from nature. Or a photograph. Or an image in your mind. You can map out the plan in pencil. But once you start painting, you need to relax and follow the paint.
A good painting never looks quite like you imagined it beforehand. Colors may mix in interesting ways. Brush strokes can lead in directions that are unexpected. Relaxing into the unexpected helps an artist see the painting in a different light. A successful artist doesn’t fight the unexpected; the successful artist follows the paint.
Six-year-olds are also great at this. My daughter will announce that she is painting a cat. She’ll start with a long brush stroke and then say, “Actually, that looks more like a dragon. I’m going to paint a dragon.” After a string of trials recently, I’ve come to realize that trials, like art, require that we all follow the paint.
Last year, in Virginia, my partner Jenny Gassman-Pines and I tried a breach-of-contract matter. We had drafted long, beautiful direct examinations of our witnesses. When our opponents called the first witness in the case, our opposing counsel said, “Judge, I anticipate that this witness will take a few hours. How do you want us to handle the fact that lunchtime is in about 30 minutes?” The judge barked at our opposing counsel, “I have never seen a good witness examination last longer than 45 minutes. You better finish by then!”
Jenny and I glanced at each other, perturbed. Our drafts were much longer than 45 minutes. I heard Jenny start crossing items off her outline, and I thought, “That’s right, we can condense this.” Our opponents, however, proved less flexible. They stuck with their original outlines, angering the judge. As the hours ticked by, he would occasionally snap, “Counsel, we already heard testimony to this effect! Move on!” That night, Jenny and I revamped the entire case to fit within the judge’s timeline. It worked. We watched the judge begin to trust us and become increasingly frustrated with our opponents. And we won the trial.
In another trial, opposing counsel was beating up on one of our witnesses (and being fairly aggressive). I was becoming worried that the witness was losing credibility, but I took a deep breath and glanced over at the jury. One of the women on the jury smiled at me and rolled her eyes, as if to say, “Isn’t opposing counsel kind of a jerk?” I relaxed, and I knew how to respond. When I got back up to re-direct the witness, I started by saying (of the cross), “Well, that looked fun!” The whole jury laughed, and we had a shared moment together.
In other trials, I’ve learned to stay flexible on questions such as whether additional witnesses are needed, rebuttal is necessary, or even whether to clarify the other side’s damages case when they have failed to clearly present their evidence. It’s not that I was acting on the fly. Just like my dad, I had a plan when I started. I studied hard. I knew the case. But with that base of knowledge, I’ve learned to listen and respond to the action that is occurring in the moment.
And I can only do this when I’m relaxed. Anxiety and/or fear crushes my ability to follow the paint. In my first argument before the Court of Appeals for the 8th Circuit, I was nervous. I was prepared but awed to be arguing before a three-judge panel. Listening to the recording after the fact, I could hear that I was nervous. I spoke too fast. And when one of the judges threw me a softball question, I missed it. I assumed it was a hard question and struggled to answer it.
In any oral presentation, but especially trial, I’ve learned that I need to force myself to feel cool and relaxed before speaking. How to do it? It turns out if you act an emotion, you’ll feel the emotion. For example, studies show that when folks put a pencil between their teeth (making them smile) they are happier. One study even found that “smiling during brief periods of stress may help reduce the body’s stress response, regardless of whether the person actually feels happy or not.” So I smile. I take a few deep breaths. And I think of myself as starting a performance — a performance where I need to be the cool, calm, and confident lawyer.
When people find out my father is an artist, they will frequently ask me whether I have an “artistic talent.” “I’m a very creative lawyer,” is always my response. But the real answer is that, even though I am not an artist, I learned the most important lesson from my artist dad. The best lawyers, and the best artists, do their homework. And they remain relaxed in the moment, able to respond and go with the flow. They follow the paint.
