It’s probably my mind playing tricks on me, but I have a foggy memory, from younger days, of removing my belt and shoes in order to forge through the security screening apparatus and into the United States District Courthouse for the Central District of California, for the sole purpose of witnessing a senior lawyer from my law firm trying an insurance bad faith case against Mike Piuze, who was something of a legend around Southern California courts at that time.

Once I got past the screening and the nonsense and made my way up to the courtroom, I entered just as my colleague was finishing a cross-examination of one of Piuze’s witnesses. It wasn’t this examination that captivated me–I actually have no memory of it–but rather seeing Piuze sitting at counsel table, alone, with nothing in front or around him but a single yellow legal pad.

As I say, my memory might be fooling with me, but the picture I carried away from that visit to the courthouse was of Piuze in trial against some behemoth insurance company armed only with his brain, a notepad, and his ego.

Well, whether I’m accurate in my recollection about what Michael Piuze takes with him to trial, most of the rest of us mere mortals generally bring along something called a trial notebook. I know that I’ve assembled several over the years, many for senior partners and a few for myself. It seems everyone includes a little something different in their trial notebook. For this post, however, I thought I’d consult that sage don of all things trial-related, Professor James McElhaney.

Ironically enough, the first chapter of McElhaney’s Trial Notebook is devoted entirely to the topic of assembling and using a, well . . . trial notebook. Clearly addressing us at what he presumes to be the brisk and hazy dawn of our careers, McElhaney writes:

“There are many rewards to using the trial notebook system. First, and probably most important, is that it helps you find things during trial, from particular passages in a deposition to the right response to your opponent’s objections. . . . Second, if you are a junior in a firm, the trial notebook can help you in two ways: it can let a senior review your work in advance of trial, and it will impress your senior that you know what you are doing.
Third, if you prepare a good trial notebook, it is much easier for a colleague to take over if anything should keep you from trying the case.” (Id. at 4-5.)

Fair enough. But what should you include in your trial notebook? Here’s what McElhaney suggests:

1. A Table of Contents and Index.

2. Analysis of the Case. “Here is the place for all sorts of notes, whether formal or informal, that go to make up your battle plan–from ideas about preliminary motions and jury selection to thoughts about final argument and requests for instructions.” (Id. at 6.)

3. Analysis of the Opponent’s Case.

4. Proof Checklist for the Case.

5. Jury Selection. “What you do during voir dire is a subject all to itself. But whether you get to ask the veniremen questions or it is all done by the judge, you cannot tell the players without a scorecard. For this you need a chart, a group of squares assembled like a map of the way the panel of prospective jurors is arranged, in which to write their names and make some notes.” (Id. at 7.)

6. Opening Statement.

7. Stipulations and Pretrial Order.

8. Witnesses. This should not only include the witnesses’ names, addresses, multiple telephone numbers and an indication whether they have been subpoenaed, but also “a short paragraph (just one or two sentences) explaining why this witness is being called to testify: just what it is you expect to prove with this person.” (Id. at 9.)

9. Examination Outline(s) for Witnesses.

10. Proof Checklist for Witnesses.

11. Deposition Index.

12. Documents and Exhibits. Here, McElhaney envisions both a list of documents and the documents themselves. Unless your case concerns a fender-bender or a simple breach of contract or debt owed, chances are you will want to break down the witness examination outlines, deposition index(s) and document and exhibits into their own separate notebooks. Experiment until you find what works right for you. One thing I’ve found really useful, though, is to include a page for every important exhibit on which you anticipate your opponent will make evidentiary objections; here you write an argument or two, or case or code citations to answer each objection. Much easier than thinking on your feet, though you have to do that, too.

13. Evidence and Procedure Memoranda. (See the last sentence of the last paragraph–unlike McElhaney, I don’t give this its own place in the notebook, but try to tie the anticipated objections and responses to particular exhibits or even witnesses. Again, find what works for you.)

14. Final Argument.

15. Motions and Requests for Instructions.

Again, you will want to experiment with what kind of trial notebook fits your style. Big cases, tried by teams of big firm litigators, spawn multitudes of notebooks, each individually devoted to a particular motion, or witness. But even in these circumstances, I think it is helpful to have a single, core trial notebook–a space where you bring it all together, and develop (and modify) themes and strategies. If you don’t want to call it a trial notebook, call it a playbook. But, unless you’re Michael Piuze, you’ll probably do better at counsel table armed with something more than a legal pad.

I last wrote, rather flippantly I thought, about why, when given the choice, I generally shun arbitration in favor of mediation. One of the comments I received, from über-neutral Deborah Rothman, suggested that I owed it to my readers to check out the set of Protocols developed by the College of Commercial Arbitrators to address the kinds of issues I raised in my post. Well, I did. And it turns out this user-friendly, publicly available monograph, Protocols For Expeditious, Cost-Effective Commercial Arbitration, has a fair amount to offer on the subject of . . . well . . . making commercial arbitration more expeditious and cost-effective. Thank you, Deborah.†

By way of introduction to the Protocols, I thought it made sense to highlight just a few of the suggestions contained in the Protocols aimed specifically at outside counsel. (There are also separate Protocols for business users and arbitrators.) Here you go:

1.  Know What You’re Doing.

I spent so much of my post bashing arbitrators, that I managed to overlook a very important point: it helps if the lawyer advocates have a clue what they’re doing. We generally assume this means having a grasp of the body of law governing the subject of the dispute. While that’s surely crucial, the Protocols point out that it is equally important that counsel understand the unique rules of arbitration advocacy. As the authors comment:

“Counsel who agree to represent parties in commercial arbitrations need to have a solid understanding of the arbitration rules that will apply, the practices of the provider that is administering the arbitration, and the growing body of state and federal arbitration law. They should know how to navigate the arbitration process in an economical yet effective way.” (Id. at 61.)

2. Select Arbitrators With Proven Management Ability.

I would argue that careful selection of the neutral is the single most important step when engaging in any form of alternative dispute resolution (ADR). This Protocol recommends going even farther. It suggests:

“Counsel should do a thorough ‘due diligence’ of all potential arbitrators under consideration and should, consistent with the Code of Ethics for Arbitrators in Commercial Disputes, interview them concerning their experience, case management practices, availability and amenability to compensation arrangements that would incentivize them to conduct the arbitration efficiently and expeditiously.” (Id. at 62.)

3. Seek to Limit Discovery In A Manner Consistent With Client Goals.

I have mixed feelings about this Protocol. One of the problems I’ve historically had with arbitration involves limitations on scope of discovery. It’s fine for the parties to have a goal at the outset to limit discovery to only what is necessary. But it can become a problem if the parties (or one of them) are too optimistic, leading to an overly restrictive scope of discovery. This is what the drafters of the Protocols have to say:

“Discovery is far and away the greatest driver of cost and delay in litigation and in arbitration. . . Outside  counsel have an obligation to make sure the client understands the limitations inherent in arbitration discovery, to assess how much (if any) discovery is truly needed in the case, and to ascertain how much time and money the client is willing to expend in turning over stones.” (Id. at 64.)

See, it’s this “how much (if any) discovery” nonsense that troubles me. In my experience, a client’s case rarely gets worse by conducting discovery, and generally it gets an awful lot better with sufficient discovery. I do recognize that, at some point–generally earlier than later–discovery begins to yield diminishing returns. But the only time I’ve had a bad outcome at an arbitration was when I inherited a case on the eve of the arbitration hearing from a rather dim-witted colleague and the only discovery permitted and conducted was a set of document demands. It was the very worst experience. I say this: if don’t want to conduct discovery then forget arbitration and forget hiring a lawyer and bring your dispute in small claims court. Seriously.

4.  Periodically Discuss Settlement Opportunities With Your Client.

Being an effective, client-centric litigator, whether in trial court or arbitration, requires us to think simultaneously in two different directions. It can be challenging. Even as our client’s case improves, we need to continue questioning whether their interests would truly be better served by negotiating a settlement. This is one of the reasons I think we should strive to adopt the Mr. Spock way of purely rational, objective thinking.

The Protocols authors say this:

“[P]ropitious opportunities for settlement often appear at multiple points during arbitration, including during discussions with opposing counsel in preparation for the preliminary conference, after briefing or rulings on significant threshold matters, on completion of all or particular discovery, after submission of dispositive motions, during the hearing, and after submissions of post-hearing briefs. At all of these stages, outside counsel should re-evaluate their initial case assessment and discuss with the client the pros and cons of pursuing settlement.” (Id. at 65.)

5. Recognize and Exploit The Differences Between Arbitration And Litigation.

Pretty much consistent with my post, the Protocols dispel any lingering hope we may have for success at summary judgment or rigid adherence to the rules of evidence. The drafters say:

“Counsel should . . . keep in mind that dispositive motions are rarely granted in arbitration, and should employ such motions only where there will be a clear net benefit in terms of time and cost savings. Counsel should be aware that arbitrators tend to employ more relaxed evidentiary standards, and should therefore avoid littering the record with repeated objections to form and hearsay.” (Id.)

Yes, your otherwise valid evidentiary objections in an arbitration hearing may not be worth the cost of your breath. They are, both literally and metaphorically, “litter,” or useless trash. They could actually irritate the arbitrator (not to mention your opponent). While the Protocols topically suggest we should “exploit” these differences between arbitration and litigation, neither the Protocol nor the accompanying comment offer much advice about how to turn the lack of available dispositive motions or rules of evidence to our advantage. I’m unconvinced.

While it’s unlikely to provide any immediate relief, one of the Protocols urges lawyers to “work with providers to improve arbitration processes.” (Id. at 67.) I suspect (but have not yet confirmed) that there may be a corresponding Protocol aimed at arbitrators which suggests they give serious consideration to advocates’ comments and suggestions. At least for now, I will continue to prefer mediation to arbitration as an effective form of ADR. However, the Protocols seem to invite a dialogue, which would seem like a step in the right direction

†Ms. Rothman, along with Curtis von Kann, are Associate Editors of the Protocols. Thomas Stipanowich is the Editor-in-Chief.

Again and again the message I hear from accomplished trial lawyers is that preparation is the absolute key to success in the courtroom. I previously wrote a post endorsing what I will term a “guerrilla” mock trial exercise as a valuable component of this preparation.

Why “guerrilla”? While firms across the country will gladly perform Cadillac-quality jury research, using state-of-the-art facilities and carefully selected mock jurors, this requires a level of investment that is far outside the budget for most parties facing a trial. A “guerrilla” mock trial, in which  you invite office staff, friends or even relatives to act as jurors, and use whatever space is available, can provide a reasonably priced alternative to a full-blown mock trial, rendering the unquestionably useful exercise available to parties that aren’t Fortune 500 companies. Just be sure to validate the jurors’ parking and buy them lunch.

In a perfect world, we would have the opportunity to present every aspect of the case to multiple sets of mock jurors before the big day. Since we live in the real world, however, I’ll focus on one aspect of mock trial presentation that I’ve personally found useful: preparation of one or two key witnesses for their cross-examination. In fact, doing direct and mock cross-examinations, in front of mock jurors, can be an excellent way to prepare a witness who is nervous, inexperienced at testifying or otherwise expected to struggle on the stand.

What is involved? First, I recommend running through several mock direct and/or cross-examination sessions alone, with no jurors present. It is hoped these preliminary exercises will smooth out and/or help identify particularly rough areas of examination. When the jurors are present, both counsel and the witness should treat the exercise as a dress rehearsal, taken seriously, without interruption.

It can be useful to provide the mock jurors with questionnaires following the examination, asking specific questions. For example, if the witness is expected to be presented with potentially damaging impeachment evidence during her cross-examination, it could make sense to ask in the questionnaire something like: “Did the evidence that _________ make you question the witness’s credibility?”Alternatively, if you are presenting a direct examination of a witness, and there is concern about the witness’s ability to provide a clear explanation, the questionnaire could ask: “Was the witness’s explanation of ______________ completely clear? Was it confusing? If so, what made it confusing?”

Another idea is to combine a mock opening statement presentation with examination of one or two witnesses. Jury consultants often present mock juries with “staged” questionnaires, to see how jurors receive and process new information. For example, jurors can be asked to complete a questionnaire following the mock opening statement. Then, they can be asked to complete an additional questionnaire following the mock direct and/or cross-examinations. Learning how the mock jurors process new information in the context of the case can help counsel develop a strategy for dealing with potentially damaging evidence–one of the great benefits of jury research.

It is a good idea to videotape the examination. This makes it possible to spend time after the mock trial reviewing the witness’s posture, demeanor or other issues both alone and, if necessary, with the witness.

A couple of additional thoughts. First, it is a good idea to reinforce the notion that the mock trial and any of the information discussed during the mock trial, should be treated as confidential. Remember, too, that there is no attorney-client privilege covering information conveyed to mock jurors, so take care not to inadvertently waive the privilege. Second, if the budget allows for a jury consultant to participate in the mock trial, this can be hugely helpful. Consultants have extensive training, and have typically participated in many, many mock trials and/or other focus group work and will bring an entirely different dimension to the analysis.

So, next time you’re getting ready for trial, think about incorporating a “guerrilla” mock trial as part of your preparation.

The media, film, and TV have long fueled a belief that the most important quality any lawyer can possess is the ability to conduct a withering cross-examination of a pivotal witness. As practitioners, we know better. The ability to think, argue and write clearly and persuasively is vastly more useful to the careers of most lawyers, at least in the real world.

One quality that does not receive much attention, but that is unquestionably something our clients pay for and (should) expect, is the ability of lawyers to approach, apprise and navigate through any situation using logical, intelligent analysis, with a minimum of ego or emotion.

I recently came across an article, in the May, 2013 issue of For the Defense magazine, in which a seasoned Georgia mediator, Christopher Ziegler, suggests, in the context of mediation negotiations, that we emulate Mr. Spock from an obscure and little known TV show called Star Trek.

I’ll confess up front that I never watched much Star Trek. This isn’t to suggest that I was doing anything better with my time. I wasn’t, unless Wild Wild West or Gumby could somehow be considered higher quality programming.

My point is that I never really paid much attention to the show or to Mr. Spock’s qualities. But in reading Mr. Ziegler’s article, “Two Emotion-Based Enemies Of The Good Deal,” I’m convinced he is onto something. Ziegler writes that attorneys and their clients mediating cases “should never act out of emotion . . . [but should adhere to a] plan, which is presumably based on analysis, logic, and reason.” Id. at 37.

Ziegler suggests that Mr. Spock, being half human and half Vulcan, “was extremely intelligent, pragmatic, and well-reasoned, never allowing his emotions to foil the best and most ‘logical’ decisions.” Id. at 38.

I cannot think that Ziegler is suggesting we should be Vulcans who are altogether devoid of emotion. After all, compassion and empathy are vitally important traits for any professional. We are not machines or computers. Rather, his point is that, when participating in a mediation, our clients should be able to look to us to advocate and negotiate in a cool, objective, non-emotional way. Discussing Spock, Ziegler writes:

“Whenever a tough decision had to be made, Spock’s decision, or his advice, was always based on the most logical, intelligent analysis, not on ego or emotion. Thus, if the most logical, best way to save the entire crew from some dilemma meant that Spock had to die, Spock would announce without emotion or drama that the necessary decision would be the course of action that would result in his death. Spock had no ego, felt no anger, and shed no tears. With an analysis free from emotion, Spock could matter of factly make a cool-headed, rational decision even if emotion would have frozen others.” Id.

While Mr. Ziegler writes about striving to quell ego and emotion during mediation, I would argue that the best lawyers are those who try to maximize cool, logical analysis and minimize ego and emotion in every aspect of their practice, not just during mediation. Certainly, a Spock-like lawyer does not storm out of a mediation early just because his opponent is not making rapid or satisfactory movement (Ziegler’s point). But he also refrains from ego-driven, ad hominem attacks during depositions or in law and motion papers. He does not allow his ego to escalate a conflict where his client’s interests are better served by seeking a compromise or otherwise de-escalating the conflict. The point is that the best lawyers are not just monkey-scribes, ghost writers or hired guns. The best lawyers bring sanity to situations that can otherwise be less than sane.

And I expect some of the very best lawyers may also have pointed ears.

What are we talking about? Let’s say you ask a witness something he doesn’t want to admit, such as a doctor who doesn’t want to admit he elected not to perform a useful diagnostic procedure (and he probably should have). So, instead of agreeing, “No, you’re right. I did not perform a spinal tap on the patient,” the witness launches into the following:

“I’m afraid you don’t understand the distinct risk involved in an invasive diagnostic procedure such as a lumbar puncture or spinal tap, as it is called. In addition to considerable expense and pain, there is a real possibility of permanent neurological injury.” (Id.)

Blah. Blah. Blah.

McElhaney offers these suggestions to deftly maintain control when you come up against a witness who evades, changes the subject or answers a different question.

Simply Re-Ask The Question Verbatim

This is especially powerful if the members of the jury have listened closely and it is a simple question, devoid of ambiguity. They, too, are thinking “Speaking zie English?” and losing respect for the witness minute-by-minute.

Re-Ask The Question In A Way That Demonstrates Your Witness Is Behaving Weasel-Like

Going back to the above example. If the original question, which drew the evasive response was: “Doctor, did do a spinal tap on the patient?” it can be effective, when re-asking the question, to phrase it as follows:

“Pardon me, Doctor, does that mean you didn’t do the spinal tap on Mr. Murphy?” (Id. at 125.)

This has the double benefit of establishing, not only that the doctor did not perform the test, but also that he was being evasive.

Tell The Witness You’re Re-Asking The Question

This is perhaps best used when the witness has twice tried to evade the question or answer a different one. On the third try, it should go something like this:

“Doctor, we’re talking now about what testing you performed on your patient, Mr. Murphy. I’ll ask you again, you didn’t perform a spinal tap on Mr. Murphy, did you?”

The good professor also suggests (1) you keep your questions on the short side, since longer questions, with more qualifiers, create more opportunities to subtly disagree or qualify an answer; and (2) try to adhere to the rule against asking open-ended questions, since you’re opening the door and basically asking the witness to assume control and talk about whatever he wants. (Id. at 126.)

“Some people cling to an old-fashioned, post-Victorian belief that gestures are inappropriate for public speaking. Law students and attorneys are often told to place their hands on the lectern or at their sides, because gestures distract the listener.” This observation comes from Brian Johnson and Marsha Hunter, in their recent book, The Articulate Attorney: Public Speaking for Lawyers (at p. 25).

I know I’ve received conflicting advice on this topic. And I’ve been on the receiving end of speeches in which the speaker gestured so freely and wildly that it was distracting and he came across like a crackpot. On the other hand, a speaker who remains so unnaturally still and wooden appears to lack both passion and conviction and, in most instances, will utterly fail to engage the audience.

Assuming you want to engage your audience, whether it is a jury deciding your client’s case, a panel of appellate justices, or a room full of potential clients, it’s a good idea, then, to make an earnest effort to not only use gestures, but to use them effectively. Lucky for us, Johnson and Hunter’s new book offers some valuable guidance in a section entitled “What Do You Do With Your Hands?”

First, they point out that “[g]esturing is not emotional or theatrical, but logical.” Id. at 27. “Gestures suit, or fit, the words being spoken, and the words logically fit the actions of our hands.”  Id. To achieve this logic, they advocate careful formulation of the first sentence of your speech. Even if you improvise much of the rest, it is a good idea to choose and practice the words with which you will begin, then practice fitting gestures to these words until you settle upon those that are most suitable. This allows you to “jump-start” the style of gesturing you will employ for the balance of the speech. As Johnson and Hunter write:

“At the very beginning of a presentation, the instinct to gesture can be as dead as a car battery at twenty below zero, frozen by self-consciousness, anxiety, or the erroneous belief that gestures are distracting. To jump-start your gestures, think of your brain as the energy source. Connect the metaphorical jumper cables of conscious thought to your instinct to gesture and turn the key. Deliberately gesture at the beginning, and suit the action to the word. Make sure your gesture engine is running.” Id. at 28.

Johnson and Hunter also advocate a style of gesturing that uses large gestures, involving the entire arm, which “move or flow through an area in front of the body called the ‘zone of gesture.’ This zone is a large space approximately two feet tall by four feet wide. It extends vertically from the waist to the nose.” Id. at 29. These larger, whole limb, gestures “avoid a common pitfall of nervous speakers: gestures with just wrists or forearms.” Id. at 31.

Finally, they address the question of what to do with your hands when you are not gesturing. Rather than the awkward crotch-blocking “fig leaf” position, in which the arms are fully extended, or the frigid, white-knuckled gripping of the lectern, Johnson and Hunter suggest we use what they call the “ready position.” Hands are “loosely touching at waist height. Hands and forearms are energized and ready to go, not pressed against the abdomen. The position is loose, not tight. A little bit of space separates the forearms from the abdomen.” Id. at 33. A principal advantage of this “ready position” is that, when you are not actively and intentionally gesturing, your hands become “invisible to most observers.” Id. at 35.

If none of this sounds particularly revolutionary, that’s probably because it’s not. As noted by Johnson and Hunter, that marginally famous writer Bill Shakespeare, speaking through the title character in Hamlet, instructed the players to “Suit the action to the word, the word to the action.” Id. at 27. Makes sense, doesn’t it?

I had a great dinner last night with someone I’ve known off and on for several years and who qualifies as one of the true luminaries of the Los Angeles Bar. Part of what made it a special meal was the food (lemon white wine-poached branzino). But a bigger part was our jovial conversation and his stories about his practice and his travels. It was such an uplifting discussion, in fact, that I spent some time today reflecting on it and I think I’ve put my finger on why I came away feeling so good. It’s this: my dinner companion was first admitted to practice law in January, 1969. Yet, now, after more than 44 years of lawyering, he still enjoys it!

He actually said, “I love what I do.” I don’t know about your friends, colleagues and acquaintances, but I don’t meet too many lawyers who’ve been doing this even just 25 or 30 years who still really seem to enjoy it. Or who enjoy it enough to declare, without the slightest hint of irony, “I love what I do.” Do you love what you do?

Like those researchers who desperately want to unlock the secret to longevity in a culture like Sardinia, Italy or Okinawa, Japan, his words caused me to wonder whether he had stumbled upon some little known formula to continuing to find law enjoyable after over four decades. I haven’t uncovered any secret formula, but after some thought I’ve identified a few factors, habits or traits, if you will, that could help explain how my friend has managed, not only to go the distance, but to do it joyfully. Without further throat-clearing, here’s what I’ve gathered:

Balance

As tempted as you might be to snicker at the notion of “work-life balance,” particularly now when everybody is supposed to feel lucky just to have a job and the new buzz phrase is “lean in,” don’t dismiss this too quickly (that includes you, too, Scott H. Greenfield). When my friend described his notion of balance, it did not mean always leaving work at a “reasonable time” so he can enjoy his life and time with family. His practice is litigation-oriented, specialized and in-demand, so he’s not working what used to be called “banker’s hours.”

But he did stress that he both “works hard and plays hard.” His meaning was that, while there may be some nights that he’s responding to emails in the early morning hours, there are lots of other nights when he’s having dinner with intriguing folks like me. This is the kind of balance I, too, have tried to find in recent years, recognizing that it’s not always going to work to leave the office at 6, or 7 or whenever. But for every time I get stuck working into the night, I make sure there are many more nights when I’m doing something I really enjoy–like spending time with my daughter.

Vacation/Travel

When I first met this man in 1996, he told me he routinely took 5-6 weeks off annually, and spent much of it traveling abroad. When I reminded him of this comment last night he smiled and said, “now it’s more like 11-12 weeks off.” Wow. Just wow.

I fully recognize that most lawyers simply cannot, financially or logistically, afford to take 2 or 3 months off every year. So bear with me, because my point is not that we should all make that a goal, but something a little more fundamental.

For my friend, he loves time off and he loves to travel. So he structured his professional life so that it enables him to maintain a thriving practice while taking a substantial (by anyone’s measure) amount of time off. He is also really good at what he does, so he is in demand and charges a premium.

But, here’s the reason I bring this up: he has found something he loves outside the law and he pursues it and will not let anything, including his practice, prevent him from doing that thing. And we can all learn something from that. We don’t have to disappear for months at a time and visit faraway lands. But I do think having a life, interests and activities outside the law–and making time to enjoy them–may be one of the important keys to a long, enjoyable legal career. One that can last over 40 years! But it won’t happen without some serious effort toward that goal.

A Team

If you’re wondering how my friend can escape a thriving law practice for months at a time, the answer is that he doesn’t do it alone. When I met him in 1996, he had an associate and a fantastic paralegal. Now he has a few “of counsel” lawyers and a paralegal. Again, he didn’t build this practice overnight, but as it grew he early recognized the need for help. We talked briefly about his team last night and he was complementary of their skills, which led me to believe that, when he takes time away, he is confident that his clients’ needs are being protected just as if he were in town.

Here, again, vetting and training a team who could competently manage his practice when he travels must have been a challenge. But, knowing he wanted a life outside the law, he spent the necessary time and energy. I don’t know, perhaps he was also very lucky with the people he found and hired. Perhaps he treats them well. But the upshot is that he’s able to take (a lot of) time away and do so comfortably. I’ll leave it to you to ponder whether this is one of the keys to his longevity.

A Practice He Loves

I do relish a good circular argument. But, the fact is, my friend loves what he does because he does something he loves. If you don’t find an area of the law that you “love” to practice now, you’re probably not going to love it in 25, 30 or 40 years. And I don’t think you have to love it at all, but if you’re going to spend four decades doing an activity many hours a week, it will really help if it’s something you find stimulating. I will readily admit I don’t love my practice, but I do find it stimulating, and I’m hoping it will stimulate me at least until my daughter finishes college.

Have I discovered the career longevity equivalent of Sardinian olives? I don’t know. But I can point to one person whose been practicing for 44 years and is still going strong. I hope I will be able to say as much.

I’ve previously written here about the Reptile litigation strategy, and here about how to prepare a witness for a Reptile deposition. In this post, I want to explore how to challenge the Reptile strategy using legal principles. Credit for explaining these strategies goes to Columbia, South Carolina lawyer David Marshall, who wrote about the Reptile strategy in the April, 2013 issue of For the Defense.

According to Marshall, “Every jurisdiction recognizes some version of the golden rule, which disallows any argument asking jurors to put themselves in the shoes of a party.” Id. at 68. The prohibition is premised on a view that such arguments are designed to destroy juror impartiality and encourage jurors to decide a case based on personal interest and bias.

Marshall refers to Reptile as a “veiled” golden rule argument “because it seeks to have jurors decide a case not on the actual damages sustained by the plaintiff but rather on the potential harms and losses that could have occurred within the community, which includes each juror and his or her family members.” Id. 

Marshall also points out that an outsized punitive damage verdict that results from jurors punishing a defendant for potential infliction of hypothetical damages, beyond what the plaintiff actually suffered, is vulnerable on due process grounds. The Reptile strategy attempts to appeal to survival instincts and a juror’s innate urge to protect her community. Marshall writes that “the Due Process Clause specifically prohibits punitive damage awards based on potential injuries that could have been inflicted on other members of the community.” Id. (emphasis in original).

Another avenue Marshall discusses involves the prohibition, in most jurisdictions, of “other similar incidents” evidence. Again, the Reptile is concerned, not only with what did occur in the case at hand, but what hypothetically could have occurred based on the defendant’s blameworthy safety practices. There is little difference, in terms of evidentiary value and risk of prejudice, between an “other similar incident” and a hypothetical similar incident that could have occurred (but fortuitously didn’t).

Marshall points also to an argument available in certain jurisdictions barring a lawyer in closing argument from urging the jury to “send a message” to the defendant, or to “act as the conscience of the community.” Id. at 74. Since this is exactly what the Reptile strategy is based on, there may be  a basis for exclusion/preclusion of Reptile tactics on this basis, as well.

Finally, Marshall suggests that, if efforts to exclude or limit Reptilian trial tactics are unsuccessful, it may be possible to dilute the effectiveness of the Reptile strategy by explaining it to the jury. Marshall suggests it may even be appropriate to “compliment the plaintiff’s attorney in . . . closing and praise his or her ability and zeal” (Id.), using this as an opportunity to explain the psychology of the Reptile strategy and why they should not get too carried away by it.

See, there’s more than one way to skin a . . . er . . . lizard.

In all but the rarest instances, I come away from a lawsuit with a clearer memory of my opponent’s lawyer than of the opponent. When I get involved in a new case, I’ll often do some research to see who I’m up against. Is she a solo or a member of a firm? Have my colleagues dealt with her in prior cases, or do I know anything about her by reputation (which, as we know, can be grossly inaccurate). As we wind through the case, I form or refine my impression of her. Generally, by the end of a case, we part ways either as friends or at least as professionals. Even in those instances in which I’ve had to be aggressive, I try not to let it get too personal.

That’s not to say I always finish a case feeling “respect” for my opponent. Let’s face it, some lawyers just don’t deserve it. And, while I don’t like to generalize, I can identify four categories of opposing counsel for whom I don’t usually feel respect at the end of the day. Are you one of these?

The Overt Asshole

This post (the entire blog, for that matter) is built on the assumption that lawyers are not per se assholes. If you hold the opposite view, then I’m not writing for you–go back to playing Farmville on Facebook.

It’s not hard to gain entry into this category, at least in my book. Refuse courtesy extensions, yell at me or my client during a deposition, make threats you know you could never carry out, insult my client, my ethics or my skills, talk down to me . . . You get the picture. What’s surprising is how seldom I’ve finished a case and branded my opponent an Overt Asshole. Perhaps the bigger surprise is that I can think of more lawyers representing co-defendants who qualified for this title than lawyers representing parties who sued my clients.

The Liar

Ah, the truth-challenged. Even nations at war are expected to adhere to a code of ethics. There’s a special circle in hell for those that don’t, and the same is true for lawyers. Telling lies is just dirty pool and should never be rewarded. Even on those instances in which it could be harmless, it degrades our profession. I’m not talking here about Bill Clinton-style fibbing under oath (though that sucks, too, but for different reasons). I’m referring to making blatant misrepresentations to the court orally or in papers. I’ve found there is often an overlap between The Liar and the Overt Asshole.

The BFF

Some lawyers think it’s strategically advantageous to be your Bestie from the get-go. This isn’t to say a genuine friendship can’t grow out of litigating a case together. I can count a handful of former opposing counsel whom I consider true friends. But when there’s an obvious strategic motive behind playing the role of best friend while litigating a case–and it’s usually possible to tell if that’s what’s going on–then the BFF is really little different from The Liar, right?

The Legend-In-His-Own-Mind

This is the guy who needs a 7-series BMW with extra trunk room for his ego. This is the guy who did pretty good in a trial once and will force his opponents to re-live those moments of glory in Technicolor. This is the guy who boasts to his opponents during deposition that he’s “a different breed.” (True story!) You don’t want to see him in action in front of the jury in this case! You know the type, right? If you don’t, you’ll encounter him some day. There are crossover possibilities here with the Overt Asshole, as well.

Do any of these describe you? In the interest of full disclosure, I’ll admit to being a little bit of each–except The Liar–at one point or another during the last 20 years. But I guarantee those weren’t my finest moments.

One of our most important jobs during trial is to object, when necessary, to prevent the improper admission of evidence. But doing this job, even properly, is not without its risks. Chief among these is the risk of alienating jurors or garnering resentment because it is obvious–assuming the objection is sustained–that you have succeeded in hiding some quantum of information from the jury. After all, they’ll wonder, if your client’s case is so obviously a winner–as you said in your opening statement–why this need to hide facts from us?

As always, the wise Professor McElhaney has something to offer on this topic. In his Trial Notebook (3rd. Ed.), he suggests we learn and practice how to make objections understandable to the jury. He even suggests they can be made appealing. He writes:

“It is true that objections are supposed to be made to the bench, not to the jury or opposing counsel. In fact, addressing either your adversary or the jury is an invitation for a reprimand from the judge. On the other hand, there is no rule against making objections so that the jurors understand the basis for your objection and perhaps even sympathize with your position, rather than concluding you are pulling some lawyer’s trick to keep them from hearing the whole truth.

Essentially the idea is to state a legally sufficient objection–one that is specific and accurate–which a layman can understand and appreciate, and do it in five to ten seconds. For example, ‘Objection, leading,’ may win a ‘sustained’ from the judge, but will not really help the jury understand what you have done. ‘Objection, Your Honor, leading. Counsel is putting words in his witness’s mouth,’ lets the jury see that your adversary has been doing the testifying.

The time limitation is very important, since if you take too long, you are inviting attack for making a speech. With some work, even the most difficult concepts can be understandably compressed in a short time. Instead of saying, ‘Objection, hearsay,’ you might say, ‘Objection, Your Honor, the jury can’t tell whether some casual bystander this witness overheard was telling the truth. This is hearsay.'” (p.327)

McElhaney goes on to point out that, while it may seem like fine trial lawyers who make well-phrased objections do so extemporaneously, the truth is that such language is generally developed and practiced in advance.

Could licensed lawyers ever go the way of the Dodo and S & H Green Stamps?

I came across this recent article in the Wall Street Journal about the growing interest by non-traditional law school students in signing up for selected law school courses and seeking non-JD graduate-level law degrees (i.e., a Masters) in discreet areas of the law, such as health care, etc. The article got me wondering whether anything could ever bring about a long-term shift away from a world in which graduate students incur huge debt to obtain JD degrees, sit for an arduous 18 hour bar examination, get their license, only to learn that: (1) there are too few available jobs for newly-minted lawyers; (2) many lawyers will only use a fraction of the information we learned during law school; and (3) although we are “fiduciaries” only about 31-38% of the public trusts their lawyers–anything could cause a glacial shift away from this world into one in which tasks and responsibilities traditionally handled by licensed lawyers are done instead by non-lawyers who may (or may not) have specialized training to enable them to assume that responsibility or perform that task.

While I’m just musing, some wonk has surely crunched the numbers and stands ready with a handy statistic about how much this change has already occurred. After all, NOLO has been around since the 1970s. LegalZoom and similar providers have (apparently successfully) developed products and services specifically designed to omit lawyers from supposedly “simple” transactions such as corporate formation, or the drafting of a trust or will. Sophisticated organizations, including realtor associations, already provide for arbitrations with non-lawyer industry experts serving as the neutrals to resolve a dispute. I also know of potentially expensive and protracted divorce disputes that were resolved with reduced time, expense and pain through the involvement of psychologist-lawyer mediation teams.

Let me be clear about what I am not talking about. Professors, bloggers and writers have discussed ad nauseam the disruptive and earth-shaking changes in the business of law (along with the “business” of teaching lawyers their trade) which have largely occurred over the past half-decade. I neither pretend nor want to contribute to this discussion. This is not about The New Normal, whatever you may think of that label. I don’t care whether or how NOLO or LegalZoom might impact the annual Profits Per Partner at Skadden (it won’t) or the profits of a sole practitioner in Visalia, California (it might), or will cause some random law school to shut its doors.

I’m talking instead about the future of our profession. The future of the idea that we are a civilization that needs expensive intermediaries, people specially trained to do our thinking, drafting and arguing for us. That we are a civilization in which two people who reach an agreement need two (or more) comparatively expensive people to reduce it to writing. Or that we lack the ability to argue effectively on our own behalf, without a mouthpiece, about anything more serious than a small debt or a traffic ticket. Are we still going to be that civilization in the future? Or could we ever evolve into a civilization in which lawyers are those jokers they talk about in history books? “I once saw one!”

What, if anything, does it say about the interest, ability and willingness of the public to commit to become more do-it-ourself with regard to tasks and responsibilities formerly handled exclusively by licensed lawyers? By the same token, what could it say about the interest and willingness of people who once thought they wanted to be a licensed lawyer to elect instead to focus their education on a sub or sub-sub-speciality of law (saving $100,000 + in tuition in the process)?

I’m not suggesting any of this could happen soon. Our systems are not ready for it. For example, while citizens are presently free to represent themselves in civil and criminal courts, I can’t even begin to suggest that it’s a good idea for anybody. I’ve been practicing in courts for 20 years, but it would never (ever) occur to me to represent myself in any criminal matter beyond a speeding ticket (and even then). But, like all things, this could change. If criminal and civil courts ever became pro se-friendly . . . (Don’t laugh. Stop it.)

I’m also not taking the position that a civilization without a legal profession would be better or worse than ours. Just different.

One of the first things a business development coach will tell you is to identify people whom you believe can help you in your quest to build a practice. If you’re like me, this might cause you to look around and compile a list of people you think might hire you directly. If you’re an employment lawyer, for example, you might try to identify business owners and human resources directors you know who could have an immediate need for your services and finding a way to market to them.

This is probably not the worst approach. After all, you’re doing something in a calculated effort to build business, which is certainly better than nothing, right?

But better than nothing is not necessarily the best. I’ve lately come to think there is indeed an even better way. Based largely on my own experiences, as well as what I’ve seen with friends and colleagues who truly qualify as “rainmakers,” I believe now that the highest return on effort (ROE), at least when you’re first building your practice, is to leverage those who you are close to and who probably care about you most. Sure the two approaches might overlap; if a close relative happens also to own a business that, as all businesses do, needs employment counsel, then there’s no difference. But what I’m describing here does not involve asking a friend or relative to send you work directly, but allowing that person to act as a conduit to boost your chances of getting business through an introduction or referral.

Let me right away clarify two things. First, what you’re after isn’t a free lunch. You’re not looking for someone to hand you an envelope full of cash; you’re seeking the opportunity to perform quality legal services for a person or business who genuinely needs that legal service. Second, I do not mean leverage in the sense of use. Do not use those closest to you to get ahead. You will feel like a user and your friends and family will feel used. Don’t be a user.

On the other hand, if your relationship and trust are such that you would not hesitate to do something–take a chance, even–to give your friend or relative a boost, then why not give them the same opportunity? I would argue (based on experience I’ve had acting as a conduit to build my friends’ businesses) that the friend or relative who goes out on a limb to help grow his/her friend’s business is the one getting the biggest emotional reward. Have you ever enjoyed giving gifts more than receiving them? Plus, the one getting the business opportunity still has to do the work, while the one who did nothing more than make an introduction or referral gets to sit back and feel good.

What I’m talking about involves a two-step process. First, it requires letting that person close to you know that she can help you and that you’d appreciate that help. This is necessary because it does not immediately occur to everyone that they can help you or that the help is wanted. Some might even hesitate to make an introduction or referral–particularly if they are not familiar with the practice of law–because they are worried it will be viewed as meddling in your business.

The second step requires explanation. You must help those around you understand exactly what you do and who your clients typically are. An easy way to do this is to explain a recent case you handled. If you were successful on behalf of your client (hopefully you were in this particular story), explain how good it made you feel to help that person or business through a tough situation. You want to sell yourself without sounding like your selling yourself. The point is to make that person who knows you, who trusts you, and who would probably like to do whatever he/she can to make your life better understand both that you would appreciate their help and how they can help.

This can be a lot easier if you’re in a position to assist the close friend or relative toward reaching his or her goals first. I’m a big believer in “paying forward,” looking for opportunities to do a good turn for another without any expectation of payback. I know now, in a way I never understood before, that there really is karma when it comes to relationships and good deeds in the business world. Unless they are direct competitors, people generally want to feel like they’ve played an important role in a close friend or relative’s success.