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.
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.
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.
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 email@example.com.
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 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.
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.
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.
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.
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.
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?
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.
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.