Day on Torts

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.

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.

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.

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.