Great Trial Lawyer Series

The Tennessee Bar Association has been kind enough to republish my "What it Takes to be a Great Trial Lawyer" series as the cover story in the November edition of the Tennessee Bar Journal.

Click here to read the article.

What It Takes To Be A Great Trial Lawyer - Part 20

Closing Thoughts

As I said in my first post on this subject, a great trial lawyer need not have all of the attributes set forth in this series of posts.  Admittedly, the "great trial lawyer" hurdle has been set  high.  Very high.  Indeed, if complete fulfillment of all of these attributes is required, the great trial lawyer may not exist at all.

These words and  high standards are not meant to discourage lawyers from embarking upon the path to becoming a great trial lawyer.  Every time a lawyer meets one of these super-standards clients will be better served,  professional reputation will be enhanced, and profession satisfaction will increase.    Thus, I believe that virtually every trial lawyer, even those who choose not to make the commitment to be a great trial lawyer, can benefit from the thoughts expressed in this series of posts.

These writings capture and applaud what I have observed  in lawyers whom I truly admire.  It includes observations I made while following my father around courtrooms in Central Wisconsin four decades ago,  insights I gained in  law school during an unforgettable speech by Ramsey Clark and discussions with a number of extremely competent professors, and my experiences during my  almost 27 years at the Bar.    As I mentioned at the beginning of this series of posts, the work of my mentor, John T. Conners, Jr., put me in the position to learn much of what I now know.

I am forced to admit that writing this series of posts began with one purpose and ended serving another.  As I said in my first post, I originally hoped to expand upon  the comments I used in a speech for the Tennessee Bar Association.  Putting pen to paper (keystroke to screen?) quickly became an attempt to articulate for myself what I must do to become the lawyer I want to be.   I can only hope that the thoughts expressed over the last five months have  been as helpful to you as they have been to me.

The rest of the series.

Note:  I have received many kind words about these posts.  Thank you.  Indeed,  several publications have already  asked permission to re-print this series.  I have consolidated all of the posts and made appropriate edits in permit publication of these words in one 9600 word article.  If you believe your state bar or trial lawyer association would like the opportunity to publish the article please let me know.  If you want a copy of the article for your own use please send me an email at jday@dayblair.com.

 

What It Takes To Be A Great Trial Lawyer - Part 19

The Knowledge That You Are Only as Good as Your Next Verdict.

I stole this idea from a friend in Atlanta who told me about it over a decade ago.  While I disagree with the notion some might take from this statement (that a lawyer has  to win or has done a  poor job), I wholeheartedly agree with what I know was intended by the statement:  great trial lawyers do not rest on their laurels.

There is no doubt that some percentage of  lawyers who have had a few victories start to believe their own press.  These people come to believe that they are better than their opponents and  that they can win by the sheer force of their past successes.  They believe that yesterday's victories will carry the day and that they can cut corners in preparation with no adverse effect.

And sometimes it is true.  Accomplished lawyers occasionally intimidate their adversaries.  They occasionally even intimidate judges.  They get their way, whether they are entitled to it or not.

But great trial lawyers do not take such things for granted.  Great trial lawyers know, in the words of a friend from New Orleans, that "the higher a monkey climbs a flag pole the more of his [posterior] shows."   Great trial lawyers know that other lawyers want to beat them and that most trial judges are going to call the ballgame the same regardless of who the competitors are.   Younger lawyers working their way up to great trial lawyer status present the greatest threat - they want to be able to say they beat a person recognized as a  great trial lawyer.

Great trial lawyers also know that great reputations are hard to get and easy to lose.  (They also know that bad reputations are easy to get and hard to lose.) They know that they might be able to cut a corner from time to time and still come out the victor, but  word quickly spreads that they are doing so.  That talk fuels the fire in their adversaries, increasing the likelihood that someone will work even harder to beat them in a case.

As suggested above, all this is not to say that great trial lawyers must win or that great trial lawyers never lose.  Nor do I mean that a lawyer who loses has done a poor job. That is not the way it works.  For example, great trial lawyers who do defense work do not get to pick their cases and therefore lose the ability to screen out cases where the risk of loss is high.  Indeed, one "reward" for being a great insurance defense lawyer is that you are asked to take on even more difficult cases involving a potential for an even greater damage award against your client.  Looking only at win/loss records is a simple person's way of determining who is a great trial lawyer.

In summary, a great trial lawyer is expected to win, and  the pressure to win honorably only increases as time passes and experience grows.  Thus, great trial lawyers do not rest on past successes but remember and duplicate the habits and discipline that got them to great trial lawyer status in the first place.  And, regardless of the outcome of the case, great trial lawyers analyze the trial and the preparation for it with a critical eye toward self-improvement.

 

What It Takes To Be A Great Trial Lawyer - Part 18

Luck

What is the role of luck in the development of a great trial lawyer?  Well, professionally it often begins with having the right mentor early in one's career.   This is largely, but not completely, luck, because most students come out of law school (a) not understanding the significance of having  a good mentor and (b) not having the skills to identify who would be a good mentor.  Worse yet, those students who do understand the significance of having a good mentor may have a difficulty finding one with whom they can work.

Luck is important  factor in getting the right cases that help the lawyer develop the appropriate skills.   This is another benefit of having a good mentor - one gets to work on cases that lend themselves to advanced preparation and that increase the likelihood that a great trial lawyer will be on the other side.  A strong opponent sharpens skills, and the more strong opponents you are able to face the stronger lawyer you will become (assuming you attempt to meet the challenge).

Getting the right cases also helps you get results that build your reputation.   The reputation of being a great trial lawyer is not the same as actually being a great trial lawyer, but a solid reputation helps one get the work (and face the opponents) that advances the developments of habits and skills that allows one to become a great trial lawyer.

Like it or not, getting "big" cases makes a difference, and there is some element of luck involved in that.  I believe in the old joke (how do you get a $1 million verdict?  mess up a $4 million case) but that fact of the matter is people pay more attention to larger results than small ones even if, from an objective basis, the result in the "small" case reflects better lawyering. 

There is also the "luck" involved in drawing the right adverse lawyer, the right judge, the right jury pool, etc.  in any given case.  There is the "luck" of facing a lying expert that you can destroy in a deposition or on the witness stand, of finding a "smoking gun," of having a whistleblower come forward, etc.  To be sure, one often "makes luck" occur in these matters and must have the dedication and skill to recognize and capitalize on such matters when they occur, but there is an inescapable element of luck in each.

One needs "luck" to avoid health problems that can derail an otherwise promising career; indeed, such problems with a spouse, child or parent can make it difficult, perhaps impossible, to do what is necessary to become a great trial lawyer.   Alcohol  can destroy a career, and there are many lawyers who look back over the course of their lives and will admit that there was some element of "luck" in avoiding many of the problems that arise from the excessive use of alcohol.  A single ethical lapse can also destroy a career, and one may have been "lucky" to have committed one and not been caught.

The list is endless but enough time has been spent on it.  The bottom line is that most great trial lawyers will admit that good luck has played some role in their development.

However, the words of Thomas Jefferson ring true to this writer:  "I'm a great believer in luck and I find the harder I work, the more I have of it."    Has Warren Buffet been lucky?  For five solid decades?  How about Tiger Woods, with 62 PGA Tour wins at the age of 32?  Are Larry Page and Sergey Brin simply lucky to have developed Google - and a decade later have it worth billions of dollars?   No, Lady Luck may give risk to occasional opportunities, or help one avoid misfortune.  But, over time, those that are truly successful in whatever field tend to make their own luck, and capitalize on it.  

What It Takes To Be A Great Trial Lawyer - Part 17

The Willingness and Ability To Delegate.

It is not impossible to be a great trial lawyer on your own, with no help from anyone.  But I don't know one.

At a minimum a great trial lawyer needs an extremely competent secretary, one who can think for the lawyer  and keep that plates spinning when the lawyer is otherwise occupied.

But a strong argument can be made that even more help is needed.  The attributes identified in this series are many and diverse, and require a substantial amount of time and energy.  It is virtually impossible to be a great trial lawyer without the assistance of at least one other competent lawyer and/or paralegal.   More may be required, depending on the caseload.

Many tasks mentioned in this series can be delegated to another competent person.  It is not necessary for a great trial lawyer to draft complaints, answers, or discovery.  A great trial lawyer need not take depositions.  Indeed, a friend of mine who lost his life at an early age secondary to brain cancer but achieved the status of a great trial lawyer before his death called witnesses to the stand he never met.  How?  He had an experienced investigator (a former state trooper who was bright, diligent, and personable) prepare witnesses for trial .  They worked together for so long that the lawyer was comfortable calling a witness on direct who was fully prepared by someone else.  I know it worked for him - we tried a case together and I saw it work.

Thus, a great trial lawyer may choose to surround himself or herself with people who share his or her dedication and values and work with them to prepare and try cases.   The trick is finding the right people, training them, and then being willing to let go of the work.  Each of those things is a challenge, especially the last one.  It is hard to let go of the work, especially the work you enjoy.  I recall  a discussion with a friend from Kansas City, asking him how he could allow others in his office to take depositions for him in his significant cases.  I said, "Aren't you worried that they will makes mistakes?"  He said, "When was the last time you took a deposition and didn't make a mistake?  Of course they will make mistakes.  And the mistakes they make may be different than the ones you make.  But with proper preparation you can overcome their mistakes, just like you can overcome your own."   

Once again, great trial lawyers figure out what level of delegation works for them.  Most learn that they deliver the best service to their clients - and improve the quality of their own life - if they delegate work to others.

What It Takes To Be A Great Trial Lawyer - Part 16

An Appreciation for the Discretion Vested in the Trial Judge

Trial judges are human.  Each of them have certain strengths and weaknesses.  Some may not have been at the top of their class in law school but know how to preside over the trial of a lawsuit.  Others are very bright but struggle with the challenges of a jury trial.  Some naturally favor the defense, and some favor the plaintiff.  Some believe that summary judgment gives them the power to weigh evidence, and others believe that Rule 56 should not exist.  Some believe that jurors can weigh expert testimony, while others believe that jurors must be protected from any expert who has not personally tested every premise of her position and had the results of those efforts peer reviewed by the top authorities in the field.  Some rule on objections, and others just waive  a hand and say "move on."  And so on.

Great trial lawyers know that the judge (whether she is the trier of fact or is presiding over a jury trial) is accorded great deference by the appellate courts on evidentiary and procedural rulings.  These lawyers adjust their game plan to meet the needs and wants of that judge, whether they agree or disagree with how the judge runs the courtroom.  Why?  Because they understand that, at the end of the day, the judge's rulings on discretionary items will probably be upheld, and the failure to plan accordingly will harm the case,

Great trial lawyers also understand that a judge whose life experiences cause the judge to favor  the lawyer's position  can occasionally go too far.  It is easy for a lawyer to swept up in this activity,  to experience the gratification of each favorable ruling, and thus to aggressively seek to admit questionable evidence or keep out evidence from an adversary that should be admitted.  Great trial lawyers tread carefully in this situation, knowing what rulings are  discretionary and what rulings may be reversible error.  They pull back when they are getting too much help from a judge, in an effort to protect the record in the event of an appeal. 

In summary, great trial lawyers understand that they need  to lose the motions they should lose,  endeavor to win the motions they should win, and fight to win as many discretionary rulings as they can.  They can do so only if they understand (a) who the trial judge is; (b) the law on the particular point and (c) the law of the discretion afforded the trial judge.

What It Takes To Be A Great Lawyer - Part 15

An Understanding of the Human Condition and What It Takes to Motivate Jurors to Action

You can't try jury cases if you don't understand how people think.  I am not talking about how  the way other members of the club think.  Nor am I talking about the thought processes or values of  the people you see at every disease ball.  

No, I'm talking about the way that "real" people think.  The way the guy cleaning the golf carts at the club thinks.  Or the woman clearing the dirty dishes at the disease ball.  Or the woman supervising the crew on the assembly line.  Or  the guy who works a second job driving a taxi.  In other words, I'm talking about the way that jurors think.

It is hard to keep up with how real people think.   The fact of the matter is that advanced education tends to divorce one from most people in our society.    Even worse, a law school education separates you from the way ordinary people process information and the language you learn there is not juror-friendly.  Then, the money earned practicing law impacts your lifestyle and thus the people around you.  You move up a neighborhood or two, tend to surround yourself with other people who have similar lifestyles, and all of a sudden you are surrounded by those with wealth and privilege.  Those folks are usually not on juries and the way they think is simply unlike the way that real people think.

Great trial lawyers  stay in touch with how real people think and thus how they can be motivated to action.    They talk to the guy that fixes their car, the woman that cuts their hair, and the server at the barbecue restaurant.  They listen to the non-lawyers in their office and encourage their candid opinions about cases.  They use focus groups as appropriate to test themes and presentations of evidence.  They read about how to understand people and motivate them.   They use the language of the jury, not the language of their Secured Transactions  professor.   They use demonstrative aids designed to educate, not just wow, the jury. 

In summary, great trial lawyers know that the advanced education and privilege they have experienced is a handicap before a jury.   They use their best efforts to overcome that handicap by interacting with and endeavoring to understand those who will be jurors.

The rest of the series.

What It Takes To Be A Great Trial Lawyer - Part 14

A Healthy Respect for the Judicial System

Great trial lawyers have a healthy respect for the judicial system and, if they are jury trial lawyers, for the right to trial by jury and the jury system.  They demonstrate that respect in the way they speak and act around lawyers and non-lawyers.

Great trial lawyers have respect for the judiciary.  They know that the office is more important than the person who occupies it at any given time, and the fact that they have a personality or other conflict with a given judge does not give them license to treat that judge with disrespect.  They do not abuse a personal relationship with a judge, or lead another lawyer, client or potential client to think that their relationship with a judge will affect the outcome of a proceeding.   They do not casually inform a client that a case was lost because opposing counsel had an inappropriate relationship with a judge or that the judge was "bought off."   Indeed, they never say or suggest such a thing, unless they know it to be true, in which event they advise the district attorney or other appropriate authorities.

Great trial lawyers who try jury cases respect juries and the right to trial by jury.  They do not think that jurors are fools who cannot be expected to fulfill their duty under the law or who can be manipulated into reaching an erroneous result.  They do not blame "the jury" when they lose - they instead look to  the facts, the law, or their inability to communicate with the jury in such a way to so as to motivate them to look at the case differently as the reason for their loss. 

That being said, great trial lawyers do not necessarily assume that our judicial system is perfect and does not reform of any type.   Indeed, great trial lawyers are in the best position to know the imperfections of our legal system, and often feel compelled to improve the system to help society reach the goal of having a just, inexpensive resolution of disputes.  Thus, great trial lawyers are not afraid to speak out for change.   They are not afraid to challenge the judiciary to do its share to improve the system.  They are not afraid to point out deficiencies in legal training (before or after graduation from law school) and the impact that it has on the system.   They seek these changes not to improve the standing of current or future client but instead to improve the system to achieve the goal stated above.

The rest of the series.

What It Takes To Be A Great Trial Lawyer - Part 13

A Passion for the Work


It is hard to be a great trial lawyer if you don't like what you do. Most people can quickly determine whether a lawyer – or the cashier at McDonald's – has a passion for the job. You can see that passion  in the face of a great trial lawyer, you can hear it in her voice, you can feel it in his writing. For whatever reason, great trial lawyers love what they do.


We all know lawyers who hate what they do. Indeed, we know lots of these lawyers. These lawyers do not have a chance of becoming great trial lawyers or maintaining the status of a great trial lawyer if they achieved it in the past. Why? Because becoming and staying a great trial lawyer is too much work, and the person who hates or is ambiguous about the work cannot do or continue to do the work to the extent required of a great trial lawyer. They will never reach the status because they are unwilling – indeed, unable—to do what is required to get there. And if lawyer reaches the status of a great trial lawyer but for whatever reason begins to lose passion for his or her work preparation will suffer, corners will be cut, and quality will suffer.


Some great lawyers can take any position on behalf of any client at any time. They are in it for the competition or the money or both, and it makes no difference who they represent or what position they take. They are hired guns.   I am not suggesting that these lawyers  are dishonest - if they were, they would not be great trial lawyers.  I am saying that these lawyers  do not necessarily care about the particular client or the cause when they elect to take on another case.  


Other great trial lawyers tend to pick a side. These lawyers defend doctors or sue them in medical negligence litigation. They represent shareholders or defend boards of directors in shareholder litigation. They represent employees or employers in discrimination cases. These lawyers feel more comfortable taking a side (chosen deliberately, by gravity, or a combination thereof) and sticking with it. 


Is there a link between continued passion for the work and picking a side? Perhaps. Some will argue that continued passion for the job can only come for the belief in something other than the competition and the money.  Others will argue that the passion for the profession comes from a place different than what side of the "v" you are on or the client's cause.  And yet others will say that it is the cause the drives the passion, but the cause in a particular case, not the cause in general.

What is the answer?  The answer can only come from the individual lawyer who has become a great trial lawyer or who is working to maintain that status.  What is it that motivates her to do her best, every day?  What is it that  makes him go the extra mile in every case?  In short, how does the lawyer  keep the "fire in the belly" burning?  And, more importantly, how does the fire stay hot over an entire career?

The rest of the series.

Note:  I have heard many wonderful comments about this series.  I appreciate them very much.  Some commentators, however, believe I have set the bar to becoming a great trial lawyer far too high.  I will address these  concerns in my last post on this subject, which will be somewhere around the first of June.

 

 

 

What It Takes To Be A Great Trial Lawyer - Part 12

The ability and willingness to undertake (and share with the client) a cost-benefit analyis throughout the litigation.

Things change in litigation.  For example, as mentioned in a least one previous post in this series, almost every deposition changes the value of a case. But there are many other things that impact the value of a case as well.


A personal injury client who forgets or lies about past medical or litigation history can cause severe damage to his case. A corporate defendant in a wrongful death case changes the landscape of the litigation if it is caught hiding or destroying documents. The commercial litigant may have its case hampered by a disgruntled former employee. And so on.


Great trial lawyers know  that despite their best efforts there will be events that occur that hurt their client's position. And they do their best – within the bounds of law and ethics – to cause or contribute to cause events that will adversely impact the case of  their opponent.


Thus, great trial lawyers know that it is in the client's best interest to evaluate the case at various points in the litigation process. Events may occur that provoke a higher settlement proposal – or the withdrawal of an outstanding offer. A mediation may need to be scheduled – or postponed. More discovery may be necessary – or planned discovery canceled. Great trial lawyers do not practice law on autopilot.


Great trial lawyers also take into account the costs of litigation in evaluating cases – both at the time of employment and throughout the litigation. Litigation is expensive. Clients need to have an idea about the costs of litigation to make informed decisions about settlement and trial. Great trial lawyers do not fear giving clients accurate information about litigation costs, and do not fear identifying the variables that will affect costs.   They do not deliberately understate potential costs to secure representation.


Great trial lawyers frequently represent clients who take positions in litigation as a matter of principle. Clients have a right to draw a line in the sand and pay to litigate when, from an accounting standpoint, it makes no sense to do so. These lawyers understand that the client may have other interests at issue (e.g. the need to send a message to future litigants that settlements will not be readily forthcoming, the need to protect proprietary information, etc.) that would cause them to spend more money prosecuting / defending the case than it would cost to resolve it.


That being said, great trial lawyers help such clients understand the costs attendant to acting on "principle." Thus, these lawyers carefully help the client analyze the "principle" at issue and help examine the factors that will assist the client in evaluating the how much the client is willing to spend to protect the "principle."


None of this should be read as suggesting that great lawyers encourage a client to abandon positions based on "principle." Far be it. Rather, these lawyers know that a client's early declaration of "I don't care how much it costs, this is a matter of principle" often changes after the legal bills begin to flow into the accounting office. They also know that, despite frequent initial resistance from the client, these discussions actually solidify the relationship between lawyer and client, because the client understands (or comes to understand) that the lawyer is attempting look out for the client's long-term interest.


Great trial lawyers do not initiate such discussions for the first time late in the litigation process. It is all-too-common for lawyers to silently yield to the client's "litigate at all costs" mindset at the beginning of the litigation and then begrudgingly began to inject some level of reality into the discussions only after the legal bills have piled up. Such lawyers are working from a position of fear, greed, lack of experience, or a combination thereof.


Finally, great trial lawyers also help a client understand the non-financial costs of litigation. Plaintiffs in wrongful death litigation need to know that the healing process will not truly begin until the litigation is over. Corporate and business clients need to understand that litigation will consume some amount of the productivity of the company and may impact the company's reputation. Acknowledgment of these facts does not mean that a claim should not be pursued or defended. Rather, great trial lawyers know that clients need to understand these matters so that they can make an informed decision about whether to engage in and continue with litigation.

The rest of the series.

What It Takes To Be A Great Trial Lawyer - Part 11

The Courage to Tell The Client the Truth


Many clients don't want the truth.  A number of them want re-assurance that they are "right," regardless of the reality of the situation. Others demand to know that, at the end of the day, they will prevail. And some will fire or lose confidence in a lawyer who doesn't give them what they want.


Great trial lawyers do not allow the desire to be employed in a given case, the desire of the client to hear only positive things (even if they have no basis in fact or law), or the fear of confrontation to trump their knowledge and experience. Great trial lawyers tell the client the truth – whether the client wants to hear it or not.


That doesn't mean that a great trial lawyer will use the verbal equivalent of a 2" by 4" to bring the truth home (although sometimes that is necessary). Rather, a great trial lawyer will offer opinions on the case consistent with his or her knowledge of the facts and the law at the time the inquiry is made. 


Let me explain. A great trial lawyer will rarely tell a client whether they will win or lose a case at an initial interview, much less put a dollar value on the resolution of the case. First, a client may not know all the facts and there is almost certainly another side of the story. Second, the value of almost any case changes during the course of the litigation. A plaintiff who does a poor job at her deposition hurts her case. A defendant who does an excellent job helps his position. A expert who is caught in a lie hurts the party who employs him. And on and on. The point is that things change,  those changes can impact the case, and a great trial lawyer is comfortable explaining that to clients.

This is not to say that great trial lawyers are wishy-washy. It is just that great trial lawyers know that things are not necessarily what they are represented to be. Some may call these lawyers "cynical;"I prefer the word "experienced." Thus, great trial lawyers help a client understand how things can change in litigation, and promise to give a more definite opinion as the level of knowledge of the case increases. Thus, a great trial lawyer manages expectations.

Good clients, the kind of folks a great lawyer wants to represent, understand that. Bad clients do not. Bad clients want guarantees before factual discovery. And, when things turn out different than represented in the initial interview, bad clients are the first to remind you of the "promises" made in that interview. Great trial lawyers know when a client is trying to box them in, and refuse to allow it to occur.

As information is learned in a given case, great trial lawyers also tell their client the truth. They give an opinion about whether to make, accept or reject a settlement proposal, or indicate that the proposal is so within the range of reason to make it a toss-up. They give these honest opinions whether the client likes the advice or not, and explain the basis for the opinion. A great trial lawyer will not hesitate to tell a client that the client is making a mistake by not taking a recommendation of the lawyer, but then will follow the client's wishes so long as the course of action is legal and ethical. In other words, great trial lawyers understand that client is the boss, and unless the client is demanding illegal or unethical action or the relationship between lawyer and client has become so impaired that the lawyer cannot adequately represent the client, the lawyer yields to the client's wishes.

The first ten parts of the series.

What It Takes To Be A Great Trial Lawyer - Part 10

The Ability to Organize


Great trial lawyers spin plates.  Lots of plates.  (Those of you who do not remember "The Ed Sullivan Show" may not appreciate this metaphor. Learn about it here.)  Law firm management requires time. Training of associates and others requires time. Bar associations require time. Families require time. And then those pesky clients ….


Thus, a great trial lawyer uses his or her best efforts to be efficient. This is particularly true in a contingent fee practice (other things being equal the efficient lawyer receives more money for less work) but is also true in a hourly billing practice (great trial lawyers work to maximize efficiency to lower client costs). Part of being an efficient lawyer is the ability to organize or, at a minimum, recognize the lack of strength in this area and thus possess the willingness to allow another to organize for you.


At one level, this means structuring your personal and profession life in such a way so as to fulfill your obligations to yourself, your family, your law practice and your community in a way that enhances efficiency and minimizes stress. Indeed, it begins by taking a personal inventory from time to time to determine whether you are on the track you want to be on and, if not, developing a plan for structuring your life to reflect your values and priorities. This is a non-delegable duty.


At the professional level, however, a great trial lawyer may seek the help of another lawyer, a paralegal, or a secretary to keep the plates spinning. Indeed, many a great trial lawyers become very close to and dependent on someone to make sure that no plates hit the stage.


In a given case, great trial lawyers figure out a way to avoid repeating past work. Memos replace memories. Document productions are bates-stamped so that  one can prove what was sent when and to provide for a ready means of reference in depositions, memos, etc. Documents produced by an opponent are organized in a method appropriate for the case. Files are structured so that a pleading or piece of correspondence can be found at 5:00 on Saturday afternoon when everyone else has gone home. Deadlines are created and monitored. Planning sessions result in to-do lists with stated deadlines, appropriate delegation and a mechanism for follow-up.


Great trial lawyers organize (or allow another to organize) for trial.  A decision is made on exhibits and they are found or prepared and disclosed in a timely fashion.  A plan is developed to get each exhibit admitted into evidence. "Friendly" witnesses are identified, prepared, and disclosed in a timely fashion, and then prepared for trial. "Hostile" witness are identified, disclosed in a timely fashion, and an examination prepared (including impeachment material). Evidentiary issues are identified and appropriate research done. The appropriate substantive law is captured, brought to the attention of the trial judge in an appropriate fashion, and used to create proposed jury instructions.  All of this is matched against a list of the evidence necessary to prove the causes of action in the complaint (or the defenses to it, if you represent the defendant), and it is double-checked.

Logistics are considered. When do the out-of-town witnesses need to be present? Where should they stay? What is the back-up plan? What items do we need to have in the courtroom each day? Do we need technical support? Where are the electric plugs in the courtroom? Do we need a back-up computer? Is there are projector in the courtroom?   Who is the person in charge of it?  What time will court start each day?  At what time will the court break for the day?  Are there other matters on the docket that will interfere with getting a full trial day in every day?  And on and on.


In summary, great trial lawyers know that organization frees the mind to do what great trial lawyers do: prepare and try a lawsuit to the best of their ability. 

Parts 1 through 9 of the series.

What It Takes To Be A Great Trial Lawyer - Part 10

The Willingness to Be One's Self


Every great trial lawyer knows that great trial lawyers have different styles and personalities. Great trial lawyers also come in all shapes and sizes. Race is immaterial. Gender is immaterial. Age is material, but only because some level of experience is required to become a great trial lawyer.

Knowing this, great trial lawyers are themselves. They are comfortable in their own skin, use their talents, identify and then attempt to strengthen, outright avoid or minimize their weaknesses.

Great trial lawyers watch and learn from other  lawyers and others with relevant knowledge and experience, but they know they can't be someone other than themselves. They learn about a new technique at a seminar or in a book, hearing or trial and determine if it works for them.  If not, they let it go. 

The other parts of the series

What It Takes To Be A Great Trial Lawyer - Part 9

The Ability to Pull the Trigger

Trial lawyers a required to make a large number of decisions. Some are minor (e.g. do I ask this interrogatory in this case?) and some are major (e.g. should I settle with one of multiple defendants in a case in which several liability applies?).


Great trial lawyers have confidence in their judgment and know that, after due consideration of the relevant factors, their decision will usually be right. They know that even if their decision is wrong that most problems that arise from that decision can be fixed and, if the original issue is such that an erroneous decision cannot be fixed, more caution is required in the decision-making process (but a timely decision must still be made).

Most importantly, great trial lawyers know that an erroneous decision is usually not as bad as no decision at all. Too many lawyers become frozen when making a tough decision and the resulting delay all too often causes a different kind of harm. Great trial lawyers avoid mental paralysis.


This does not mean that that great trial lawyers make uninformed judgments. They gather information and then make a decision. If during the decision-making process it becomes apparent that more information is acquired the great trial lawyer identifies what is needed, decides how to obtain that information, gathers the information, and then makes the decision.


Sometimes there is no time to gather information. Or there is limited time. In these circumstances the great trial lawyer takes the known information and makes a decision. And lives with it.

The first eight parts of this series.

What It Takes To Be A Great Trial Lawyer - Part 8

Great Trial Lawyers Understand the Importance of Depositions


Great trial lawyers understand the value of depositions, and whether the deposition is taken personally or the task is delegated to another, go into a deposition with clearly defined goals determined after adequate preparation. The diminishing number of trials means that many cases are won and lost in depositions. Indeed, virtually every deposition affects the value of every case.

Yet, a great trial lawyer need not take all of the depositions in any case or any of the depositions in a given case.  This is a task that can be delegated to another comptent lawyer.


Great trial lawyers first think about whether a person or entity should be deposed. What is to be achieved by the deposition? Is there a tactical advantage to not taking the deposition? What other discovery should be done before the deposition? Should the deposition be videoed?


The great trial lawyer prepares for a deposition. He or she marshals the known facts before the deposition, and then determines what facts need to be confirmed or developed from each deponent. Those decisions are made after examining the case thoroughly, anticipating potential factual issues and legal theories that will be advanced by the opponent. Questions are asked with a clear goal in mind, using words chosen with the ultimate fact-finder in mind. One attempts to close and seal possible defenses or claims, including those that have not been publically raised.


A great trial lawyer may choose to impeach a deponent at the deposition,  save the impeaching material for trial or use it as leverage for settlement. This is a judgment call.


Great trial lawyers treat deponents will respect, whether they be janitors or CEOs. They do not demean or belittle the less-educated or less- intelligent deponent. That being said, great trial lawyers expect that appropriate questions will be answered and will insist that a witness not evade his or her obligation to provided truthful testimony.


Great trial lawyers understand that creating a record at deposition is vitally important, and make the effort to leave the deposition with a transcript/video that accurately reflects the events of the deposition. This attention to detail includes the appropriate  introduction of exhibits and the use of them during the deposition.


Finally, great trial lawyers understand that Rule 32 of the TRCP and Rule 804 of the TRE gives rise to a myriad of circumstances in which a so-called discovery deposition can be used at trial and plans accordingly. Indeed, the knowledge of that rule is a factor taken into consideration in determining whether to take the deposition in the first place.

The "What It Takes To Be A Great Trial Lawyer" Series

What It Takes to Be A Great Trial Lawyer - Part 7

Great Trial Lawyers Learn the Facts.


I was in a deposition several months ago in a case that  involves an intersection wreck.  There are  several different plaintiffs represented by several different lawyers, several defendants, and counsel for a UM carrier.


My conversation with one of the lawyers caused me to wonder to ask if he had ever been to the intersection where the wreck occurred.  I asked him if he had. He had not.


The intersection is less than five miles from his office.


Great trial lawyers understand that the devil in is the details. Great trial lawyers know that all of the facts will not be presented at trial, but great trial lawyers learn the facts and determine which facts will be presented at trial.


Great trial lawyers know that it is important to get a feel for the scene of an event. Sometimes that means traveling to an intersection, visiting an operating room, or standing in a ditch along the interstate. It may mean going to the scene of a hotel rape or visiting the plant where your client’s limb was amputated. It means taking the time learn.


Great trial lawyers don’t need to look at every piece of paper in a commercial case – that task can be delegated to other competent people. But great trial lawyers know the key documents inside out.

The "What It Takes To Be A Great Trial Lawyers" Series

The "What It Takes to be a Great Trial Lawyer" Series

Here are the opening paragraphs of my December 15, 2007 post that gave rise to a series of posts that has garnered a good deal of attention:

I participated in a panel discussion at for the Young Lawyers Division of the Tennessee Bar Association on Friday and was asked this question: what does it take to be a great litigator?

I knew in advance that I would be asked that question and gave the matter a good deal of thought driving from Atlanta to Nashville Friday morning. My response seemed to go over pretty well so I thought that I would share the thoughts on this blog.

I changed the question to "what does it take to be a great trial lawyer?" I chose "trial lawyer" over "litigator" because I think that the readers of this blog tend to view "litigators" as paper-pushing big firm lawyers who don't try cases. It is true that there are a significant number of lawyers in litigation departments in big firms who will never see the first or second chair of a jury trial, but it is also true that there are some great trial lawyers in those firms. My goal is identify the attributes of great trial lawyers, regardless of the type of cases they try, who they customarily represent, or whether their office is over the bank on the town square or in an all-glass office tower.

Now, a couple preliminary statements. First, these thoughts are in no particular order. That is, I am not listing the attributes of a great trial lawyer in order of their importance.

Second, I am not talking about what it takes to comply with the standard of care as a trial lawyer. I am identifying those lawyers who practice above the standard, who are truly at the top of the heap.

Third, a great trial lawyer need not have all of these attributes. Every lawyer has at least one weakness. A great trial lawyer knows his weakness(es) and figures out a way to work around each of them.

Finally, one or more of you (perhaps all of you) may ask what qualifications I have that makes me think I can create a list of attributes worth reading. That 's a fair question. My response is that I was trained by a great trial lawyer (John T. Conners, Jr.) and I have been fortunate enough to have been swimming in the deep end of the litigation pool for twenty-six years. By that I mean is because I worked six or more days a week with Mr. Conners for the first eleven years of my career I had the benefit of working on some significant cases early in my career and most of our adversary counsel were very good or even great lawyers. I left my old firm fifteen years ago and my practice since then has been such that I customarily face lawyers that most people agree are very good or great lawyers. It is my interaction with these lawyers, plus my conversations and interactions with the thousands of lawyers I know in Tennessee and around the nation, that form the basis of these thoughts.

Read the first six parts of the series here.

What It Takes To Be A Great Trial Lawyer - Part 6


6. Great Trial Lawyers Don’t Cheat


There are lots of opportunities to cheat in the practice of law. You can withhold information during the discovery process. You can improperly coach a witness or client. You can knowingly violate orders on motions in limine. You can knowingly violate the rules of evidence or the law of trial. You can mis-cite case authority or misrepresent facts to a trial judge or appellate court.


And sometimes cheating can help you win. A weak trial judge won’t call you down or impose sanctions. The victim of the improper conduct doesn’t discover it or discovers it too late. And when you start cheating and aren’t punished for it, you keep doing it, in part because it has worked for you in the past and in part because you are afraid that you will lose if you don’t.   And you can't stand to lose, or you wouldn't have cheated in the first place.


There are four problems with cheating. First, it is wrong. Second, word gets out that you cheat.  Third, at some point in a cheater’s career they will get caught. Red-handed. And someone is going to make them pay. Big. Finally, I work under the assumption that late at night, in the dark, the cheater faces the fact that he or she has cheated and won. And my guess, indeed my hope, is that the cheater wonders whether they would have won if they had not cheated. And in my mind that is almost punishment enough.


Great trial lawyers don’t cheat. They have a strong desire to win, but would rather lose than cheat. They know that becoming a great trial lawyer is more than about just winning – it is about winning with honor.

Each of us knows otherwise great trial lawyers with an asterisk behind their name. Like the home run hitter who uses steroids, they are known to cheat. And as a result, they are known for nothing else.

Read the rest of the Great Trial Lawyers Series.

What It Takes To Be A Great Trial Lawyer - Part 5


5.  A Great Trial Lawyer Maintains A Reasonable Caseload


In Part 4 we discussed the fact that great trial lawyers take time to think about their cases. And we mentioned that many lawyer argue that they don’t have time to think.


I suggest that there are only four possible reasons why lawyers don’t have time to think. First, a lawyer who doesn’t have time to think is not working hard enough. Alternatively, a lawyer who doesn’t have time to think has too much work. Third, it possible the lawyer has an appropriate caseload and is working an appropriate number of hours but is not operating efficiently. Fourth, a lawyer who doesn’t have time to think can be lazy.


My discussions with thousands of lawyers from around the country leads me to believe that (a) most lawyers are working plenty of hours (and many are probably working too many hours); (b) most lawyers have too much work (maybe not the work they want, but work they agreed to undertake); (c) the level of efficiency varies significantly; and (d) there are undoubtedly lawyers who are lazy. We won’t spend any time discussing lazy lawyers – they will never be great trial lawyers.


It is natural for a lawyer to have more work than he or she should ideally have. We all fear the lack of work, and wonder where the next case will come from, and therefore we tend to gather as many cases as we can to have the comfort of a full file cabinet (or six).


But great trial lawyers recognize that they can handle only a certain number of cases at one time. Keeping up with the substantive law and the law of evidence and procedure takes time. Taking the time to develop a strategy for the case and implementing the strategy takes time. Throw in family, social and other obligations and time seems to evaporate.


So what is a reasonable case load? It depends on the type of cases the lawyer is handling and the support personal utilized. Let me use medical malpractice cases for the plaintiff as an example. ( I pick this because I worked on my first medical malpractice case as a summer clerk in 1980 and have had med mal cases as a part of my caseload for the last 26 years.) If your court system will permit those cases to be tried in eighteen to twenty-four months, you do your own legal writing, and you have no support staff other than a secretary I believe it would be extremely difficult to effectively handle more than eight of those cases (particularly if they involved different medical disciplines) at a time. And it would virtually impossible to try each one of those cases in that time frame and keep opening cases and working on cases to keep your caseload at eight .


I say this working under the assumption that you are properly preparing those cases for trial. Sure, you could schlep through the work, just like you can buy a steak at Waffle House. I am talking about doing it right.


On the other hand, if you have the right support staff you can try a two or three-day intersection wreck case every Monday of every  week. I know of lawyers, great trial lawyers, who have a system in place where other professionals do everything in the case except try it. These lawyers have a basis for the expectation that the case has been properly prepared. They get the data they need for trial is a systemized format and can prepare quickly.  They have to spend minimal time on the law because they have a narrow practice area and the evidentiary issues are the same in almost every case. They can maintain a much larger caseload because they are able to leverage their trial skills through qualified support staff on substantially similar cases

So, the answer to the question of what is a reasonable caseload depends on the circumstances. Indeed, one case may be too many, and fifty cases may not be enough. A great trial lawyer identifies the type of practice that works for them, and then creates a structure around them  that supports that practice.

The bottom line: great lawyers maintain a reasonable caseload. They either restrict the number of cases they take, limit the breadth of their practice areas so as to take more cases but achieve economies of scale, systemize their practice to become more efficient, employ more personnel (or acquire the talent through outsourcing) to leverage the great trial lawyer’s talent, or employ a combination of the foregoing. In other words, they find some way of delivering high quality, timely service that works for them – and for their clients.


Read the rest of the Great Trial Lawyers series.

What It Takes to Be A Great Trial Lawyer - Part 4

A Great Trial Lawyer Takes Time to Think


It is easy to get lost in the daily grind of litigation. The phone constantly rings. The computer’s “ding” tells us that another email has arrived. Each piece of mail brings another task and another deadline. Each fax brings bad news, especially those faxes that arrive after hours.


It is easy to fall into a reactive mode and then find yourself scrambling to do what you should have done long before. Deadlines get extended or outright missed. Interrogatory answers are incomplete. Your opponent’s ridiculous objections to discovery go unchallenged. You think about the need for a particular type of expert later than you should and end up using the only one you can find because the “good” ones are too busy to work on a short time-table. Your failure to follow a scheduling order results in your client’s case being continued to a date six months later, and then she gets in another car wreck and injures the same body part. And so on.


Great trial lawyers avoid this by taking time to think. They identify issues early, and create an action plan to address those issues and reduce the likelihood of harm to their client’s case. They delegate work to other competent persons to ensure it is done in a timely fashion. And they use the action plan to cause their opponents to react. In other words, great trial lawyers stay on offense, whether they represent plaintiffs or defendants.


And how do great lawyers take time to think? They leave the office. Or they turn off their phone. They find some way to focus on each case for a long enough period to time identify issues and figure out how they can be addressed. And they do that often enough in each case to stay at least one step ahead of their opponent at all times, even if their opponent is a great trial lawyer.


I have had this discussion with many lawyers over the years. A frequent response is “but my case load is such that I don’t have time to think.” And that is the topic of the next post.

The other "Great Trial Lawyer" posts

What It Takes To Be A Great Trial Lawyer - Part 3

A Solid Knowledge of the Rules of Civil Procedure.


The adoption and expansion of the discovery section in the modern-day rules of civil procedure was intended to reduce the number of trials by providing a mechanism for the flow of information between parties to litigation. The idea was that if one party to a dispute learned the opposing party’s view of the facts and law more cases would be dismissed without the expense of trial.


It worked. The “vanishing civil jury trial” is now a reality. The fact of the matter is that over 98% of all cases are settled before trial and even the cases that go to trial are subject to the rules of civil procedure. A failure to know the rules can result in a dismissal of your case, a restriction in the evidence you present, and other things one would just as soon avoid.


So, truly great trial lawyers learn the rules and use them both as a sword and a shield. For example, a great trial lawyer understands how to draft an affidavit in support of or in opposition to a motion for summary judgment. He or she knows how and when to ask a court to grant additional discovery before ruling on such a motion.


As another example, a great trial lawyer knows the interplay between Rule 59 and appellate court review of the case.


These lawyers reasonably accommodate other lawyers, unless those lawyers have proven themselves unworthy of such accommodation or the accommodation will hurt a client or client’s cause.


Great trial lawyers understand that the rules change and keep up with those changes.  Great trial lawyers understand that every judge has “local rules,” not all of which are written down. The lawyer learns the written rules and makes a reasonable effort to learn the unwritten rules.


The rules aren’t sexy. No one dreams about arguing a motion to amend. But the fact of the matter is that the rules of civil procedure (and evidence) represent the rules of litigation, and those who don’t know them are suffer from a  clear disadvantage regardless of their advocacy skills.

What It Takes To Be A Great Trial Lawyer - Part 2

2.  A Solid Knowledge of the Law of Evidence.

You have to know the facts.  But mere knowledge of facts doesn't do your client much good.  You have to know how to get those facts before a factfinder.  In other words, you need to understand the law of evidence. 

The relative paucity of trials makes it difficult to keep current on the law of evidence.  And simply keeping current on case law doesn't do you much good - there are relatively few civil cases that discuss evidence issues.  (Criminal law is another matter.) 

Nevertheless, great trial lawyers anticipate evidence issues and know how they are going to get facts and documents into the record.  Great trial lawyers critically examine the potential  proof of their opponents and look for ways to encourage the trial judge to force   opponents to meet  the evidentiary requirements necessary to get potentially damaging proof before the factfinder.

That being said, great trial lawyers stipulate matters that are not reasonably in dispute and do not force their adversaries to jump through unnecessary hoops to prove what can be readily proven with the expenditure of time and money.  Of course, great trial lawyers may not accommodate another lawyer in this regard if the lawyer has not extended a similar courtesy or has not made the request in a timely manner.

A great trial lawyer thinks about motions in limine and makes judgment calls about which issues to raise  before trial and which to raise at trial.

Great trial lawyers use objections with care at trial.  They understand how to make a record to persuade the judge to rule in their favor and  also how to create a record for an appeal.

Great trial lawyers understand the appellate standard of review of evidentiary issues and act accordingly when advising their clients on the appellate process and when preparing issues and briefs for appellate review.

What It Takes To Be A Great Trial Lawyer - Part 1

What It Takes To Be A Great Trial Lawyer - Part 1

I participated in a panel discussion at for the Young Lawyers Division of the Tennessee Bar Association on Friday and was asked this question:  what does it take to be a great litigator?

I knew in advance that I would be asked that question and gave the matter a good deal of thought driving from Atlanta to Nashville Friday morning.  My response seemed to go over pretty well so I thought that I would share the thoughts on this blog.

I changed the question to "what does it take to be a great trial lawyer?"  I chose "trial lawyer" over "litigator" because I think that the readers of this blog  tend to view  "litigators" as paper-pushing big firm lawyers who don't try cases.  It is true that there are a significant number of lawyers in litigation departments in big firms who will never see the first or second chair of a jury trial, but it is also true that there are some great trial lawyers in those firms.  My goal is identify the attributes of great trial lawyers, regardless of the type of cases they try, who they customarily represent, or whether their office is over the bank on the town square or in an all-glass office tower.

Now, a couple preliminary statements.  First, these thoughts are in no particular order.  That is, I am not listing the attributes of a great trial lawyer in order of their importance.

Second, I am not talking about what it takes to comply with the standard of care as a trial lawyer.  I am identifying those lawyers who practice above the standard, who are truly at the top of the heap.

Third, a great trial lawyer need not have all of these attributes.  Every lawyer has at least one weakness.  A great trial lawyer knows his weakness(es) and figures out a way to work around each of them.

Finally, one or more of you (perhaps all of you) may ask what qualifications I have that makes me think I can create a list of attributes worth reading. That 's a fair question.  My response is that I was trained by a great trial lawyer (John T. Conners, Jr.) and I have been fortunate enough to have been swimming in the deep end of the litigation pool for twenty-six years.  By that I mean is because I worked six or more days a week with Mr. Conners for the first eleven years of my career I had the benefit of working on some significant cases early in my career and most of our adversary counsel were very good or even great lawyers.  I left my old firm fifteen years ago and my practice since then has been such that I customarily face lawyers that most people agree are very good or great lawyers.   It is my interaction with these lawyers, plus my conversations and interactions with the thousands of lawyers I know in Tennessee and around the nation, that form the basis of these thoughts.

1.   A great trial lawyer knows the substantive  law applicable to the cases the lawyer evaluates, accepts, settles and tries.

Great trial lawyers make intelligent case selection decisions based in part on applicable substantive law.  This does not mean that a good trial lawyer takes only cases that can be won - if that were true there would be no good insurance defense lawyers ( they do not get to pick their cases). 

No, a good lawyer knows the law so that if the lawyer has an opportunity to accept or reject a case (or a legal position in an accepted case) a reasoned judgment is made about the merits of the case (or the position) on the known facts.  A good lawyer does not have to have the law memorized (although that is a plus) but needs to know the limits of his or her knowledge and look up what he or she doesn't know.  This task can be assigned to a different lawyer, but a good lawyer knows what needs to be researched and has sufficient experience and judgment to look for weaknesses in research done by others.

The law is important because it is, well, important.  Facts are important.  The ability to persuade is important.  Lots of things are important.  But the fact of the matter is that there are lots of wrongs in the world for which there is no remedy.  And there are lots of wrongs for which there is in ineffective remedy.  A lawyer who seizes upon wrongs without regard for the law will go broke or, at a minimum, will have some very unhappy clients.

My belief that a great lawyer knows the law does not mean that one should not push the legal envelope.  Great lawyers push the envelope as appropriate or necessary.  But a great lawyer selects a case or adopts a position knowing that the envelope needs to be enlarged, and therefore is not surprised by a legitimate motion to dismiss, a motion for summary judgment, or a motion in limine.  These attacks are anticipated and therefore pleadings are constructed and evidence is gathered to meet these attacks in a timely, effective manner.  A great  trial lawyer may lose such a fight, but not because of a failure to anticipate the attack, frame pleadings appropriately, gather evidence, or make appropriate arguments.

A great lawyer keeps up with changes in the substative law in the lawyer's practice areas.  Once again, no lawyer can keep track of every case in the lawyer's field, but a great lawyer does sufficient reading or attends appropriate seminars have a solid base of knowledge and is aware of current trends in the law.   A great trial lawyer can handle cases in almost any field of substantive law, but understands the need to  become educated early enough in the litigation process so that case selection and critical decisions are made from a firm knowledge base.

 

 

What It Takes To Be A Great Trial Lawyer Part 3

3.  A Solid Knowledge of the Law of Civil Procedure.

The adoption and expansion of the discovery section in the modern-day rules of civil procedure was intended to reduce the number of trials by providing a mechanism for the flow of information between parties to litigation. The idea was that if one party to a dispute learned the opposing party’s view of the facts and law more cases would be dismissed without the expense of trial.


It worked. The “vanishing civil jury trial” is now a reality. The fact of the matter is that over 98% of all cases are settled before trial and even the cases that go to trial are subject to the rules of civil procedure. A failure to know the rules can result in a dismissal of your case, a restriction in the evidence you present, and other things one would just as soon avoid.


So, truly great trial lawyers learn the rules and use them both as a sword and a shield. For example, a great trial lawyer understands how to draft an affidavit in support of or in opposition to a motion for summary judgment. He or she knows how and when to ask a court to grant additional discovery before ruling on such a motion.


As another example, a great trial lawyer knows the interplay between Rule 59 and appellate court review of the case.


These lawyers reasonably accommodate other lawyers, unless those lawyers have proven themselves unworthy of such accommodation or the accommodation will hurt a client or client’s cause.


Great trial lawyers understand that the rules change and keep up with those changes.
Great trial lawyers understand that every judge has “local rules,” not all of which are written down. The lawyer learns the written rules and makes a reasonable effort to learn the unwritten rules.


The rules aren’t sexy. No one dreams about arguing a motion to amend. But the fact of the matter is that the rules of civil procedure (and evidence) represent the rules of the litigation, and those who don’t know them are at a clear deficit regardless of their advocacy skills.

 Part 2

Part 1