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(323) 652-9451I was really pleased to come across this article in the ABA Journal about Drexel University Professor Karl Okamoto, who has created a moot court-type experience dedicated to helping students hone skills needed to practice transactional law. I know the focus of this blog is generally on litigation and trial skills, but I applaud Professor Okamoto for coming up with something new and inspiring to fill the huge void for students who don’t want to litigate, or maybe just want to get a taste for what deal lawyers do. I hope similar programs become more widely available.
I probably speak for a lot of litigators who feel that they did not so much choose to go the litigation route as settle for what was available. Certainly, when I dreamt of becoming a lawyer I pictured myself in a courtroom. And I spend a fair amount of time there. But I spend an equal or greater amount of time either chained to a computer drafting motions and discovery responses or taking depositions. If I had learned something about doing deals early on, who knows . . .
Almost every transaction lawyer I know enjoys his or her practice more than the average litigator I know. The only exception to this comes from the fact that transactional law, M & A, real estate deals, private placement, public offerings and the like, seems to be a cyclical practice. At least in the past two decades, it’s been feast or famine for a lot of the deal lawyers I know, particularly at BigLaw firms. That’s not to say that litigation isn’t cyclical. In fact, I’m told we’re in a down cycle in many litigation practice areas right now.
The number of students who spend their second year summer in a BigLaw summer associate program has been shrinking. I know that neither BigLaw nor these programs are everybody’s cup of tea. On the other hand, up until now such programs have been the only opportunity most law students (and many lawyers) ever get to experience how transactional law is practiced.
Here’s how Professor Okamoto’s moot transaction program, LawMeets, works:
“[S]tudents get fact patters for a deal and play the roles of buyer, seller and client. Over a period of months, they have conferences; draft, exchange and mark up documents; and then negotiate the deal. Prominent transactional lawyers judge their documents and negotiations, as well as offer feedback. Then the students get to watch the pros haggle over the same terms. ‘That’s when we think the “ahas” begin,’ Okamoto says.”
One added benefit I can immediately see to this program is how it forces students to complete a project over several months, which is much more similar to an actual law practice, where it is necessary to sustain focus on a deal (or a case, or several cases) over a longer period of time, often punctuated by short periods of frenzied activity.
The other interesting approach is asking the judges to demonstrate how they would handle the same situation. This could influence the way trial advocacy and moot court competitions are taught, though it might make it more difficult to find judges who’ll volunteer, not only to judge the competition, but also demonstrate their skills.
Kudos to Professor Okamoto!
Experienced lawyers speak about trying to learn something from every case you handle. This is valuable advice, and something most of us probably do without really thinking about it. But I’ve found it more valuable and interesting to try to learn at least one thing each from at least most lawyers I come across in the course of my practice. In many ways our professional education only begins in earnest after we finish law school, pass the bar and start plying our trade. I was fortunate to have a great mentor during these formative first years, but I recognize the reality that not every new lawyer is going to bond with a mentor.
In an odd way, however, every lawyer we encounter in our practice can act as a mentor of sorts and, if we’re perceptive, can open our eyes and help shape us into better lawyers. Let me offer a couple of illustrations. Let’s first take a positive example. Some years back, my partner and I defended a catastrophic product liability case against an older aviation lawyer. This guy, who is now retired, was quite literally a trial legend. He was sharper in his early 80s than most of us at our peak. Our case together resolved pretty early on, but I still had an opportunity to share an almost empty courtroom with him one morning while we waited for our judge to rule in chambers on an ex parte application.
What did I take away from the experience? Probably more than I realize, but what struck me at the time, and has stuck with me since, was the way in which he interacted with the courtroom clerk and bailiff. We’ve all seen how lawyers parade into courts and treat the courtroom staff with . . . let’s call it indifference, or sometimes worse. We litigators often see clerks and bailiffs as impediments to what we’re trying to accomplish. I know at my worst moments I’ve done it. But I saw how my opponent’s manner was different. When he spoke with the clerk and bailiff he engaged them. From his attention and questions, it was obvious he had a genuine interest in their backgrounds, their interests and families. It wasn’t a stretch to imagine he would take a similar interest during voir dire in the prospective jurors who would decide his client’s case.
We all know people who are have this kind interpersonal curiosity—they’re often very successful, as politicians, leaders—or trial lawyers. Why are they so successful? Because being interested—genuinely interested—is the first step in creating a bond, which involves trust. And the ability to garner trust can be among a trial lawyer’s greatest strengths.
Not every lawyer we encounter is worthy of emulation, and that can be a valuable learning experience, too. And we don’t learn only from seasoned lawyers, newbies who have a trait or style can help shape us, if we’re paying attention. In particular I’m thinking of a young associate I came up against a while back. I previously wrote about this guy. On the surface, he had a lot going for him. He seemed intelligent, charming and had scored a job working for an LA-based “Nader Raider” automotive product liability lawyer who boasted a string of six and seven-figure trial verdicts.
It wasn’t too long, however, before it became clear to everyone on our side of the fence that this associate had something of a . . . reckless relationship with the truth. Not only did he make calculated and blatant misrepresentations to our judge, but every telephone call or conversation with him was followed by a letter purportedly “confirming” several things that were either not discussed or never agreed upon. From this lawyer I learned how precious is a lawyer’s reputation for honesty. It is an undeserved gift; one that we must never squander.
Sometimes the way an opponent practices forces us to confront our intuitions about whether something is ethical or appropriate. We learn from this, too. For example, I am presently litigating a civil case against a pretty seasoned lawyer who spent the first half of his 35+ years practicing criminal law. There are numerous “independent” witnesses in our case—witnesses who would not be expected to have any inherent bias in favor of one side or the other. We’ve just wrapped up a long string of depositions, including several such independent witnesses. During these depositions, it has become clear that my opponent has gone out and met in person with every single witness in anticipation of their deposition. In some cases he literally spent hours with them preparing for their deposition.
Undoubtedly, readers will have different views on whether this is appropriate. There is another party in our case and its lawyers are adamant that our opponent’s behavior is the worst kind of slimy. And I’ll admit that my initial reaction was not positive. But after serious reflection, I’ve come around to think it’s not necessarily inappropriate, and could in fact be a prudent thing to do in some circumstances. It obviously leaves the witnesses somewhat vulnerable to cross-examination (“Now, how long did you spend with Mr. So & So preparing for your deposition today?”). On the other hand, my opponent knew before we went on the record what the witness was planning to say, and he could tailor his examination to capitalize on positive aspects, while anticipating and diffusing negative testimony.
I realized, too, that while this kind of interaction with independent witnesses might seem unusual in civil litigation (it is more common to interview witnesses through the medium of a third-party investigator), it is the most natural thing in the world in criminal law, where my opponent cut his teeth. After all, depositions and other prior testimony are rarely available in criminal trials; an interview is often the only way to know what a witness will say before he/she takes the stand. So, while I try to learn something (or a bunch of things) from every case, I also make it a point to try to keep my eyes open and learn something from every lawyer I’m up against.
In an August 3rd profile of high-end family law practitioners Daniel Jaffe and Bruce Clemens, the Los Angeles Daily Journal quoted these lawyers as citing five important areas for litigators:
“A lawyer has to know people, know financial issues, know the law, know how to try a case and know how to settle a case. . . It seems obvious, but there are very few lawyers who have high skill levels in all five. If you don’t have all five and the other side does, your client is at a disadvantage.”
Does your lawyer have all five? I like to think I’m solid on four of them, but complex financial issues–for which an accountant would be required anyway–may not be my forte. Of course I don’t practice family law.
Learn MoreThe Defense Research Institute (DRI) is seeking new members and I promised to do my part with this public service announcement.*
I’ve belonged to DRI since my first year of practice and I have found it to be a great resource and, at times, a lot of fun. Over the years, I’ve belonged to the Young Lawyers, Products Liability, Trial Tactics, Alternative Dispute Resolution, Commercial Litigation and Employment and Labor Law Committees. With a few exceptions, I’ve tried to hit at least one conference every year, often in Chicago, but sometimes in really exotic destinations like Scottsdale or Las Vegas.
The benefits of membership include well-planned, well-executed conferences, a monthly print magazine, For the Defense, which generally has focused and relevant articles, and multiple online e-newsletters. There are expert witness databases and certain substantive law committees have very active listservs. There’s also a blawg, DRI Today. The real benefit from my perspective, though, is the opportunity to belong to an (inter)national** network of thousands of practitioners who can serve as both referral sources and substantive law resources. I met some great people at the conferences and I’ve kept in touch and tried to refer business to many of them over the years.
Take a look at DRI. There’s a discounted membership for lawyers practicing 5 years or less. And if you’re interested in joining, let me know and I’ll hook you up.
*With guitar!
** Including Canada.
I came across this post on the Lawyerist on the question whether good legal writing is inherited or developed. Putting aside that debate (the answer is both, by the way), it occurred to me that there are two steps that mediocre legal writers can take to immediately improve their writing.
There are actually three steps. The first is to realize your legal writing needs help and care enough to try to improve it. There are lots of advocates who slog through an entire career filing nearly incomprehensible briefs. Don’t be that lawyer. Take pride in your product. The fact you have read this far, rather than clicking on to something more compelling, means you are at least curious, or you just got an Apple and haven’t figured out how to navigate away from this page.
The first sure-fire way to improve your legal writing is to strive to use an active rather than a passive voice. It’s ironic that I spent several (ok 6, but who’s counting) years getting a degree in Literature-Writing from a really solid university, but it wasn’t until I was a staff member on Law Review that I truly began to understand the importance of active voice. If you missed the special torture that is editing a legal journal, or were otherwise never trained to write in active versus passive voice, I’ll provide a very easy example to illustrate the difference. Using passive voice, a lawyer might construct a sentence that reads: A man, woman and two children were shot by the defendant. Contrast that sentence with one written using active voice: The defendant shot a man, woman and two children.
See? Simplest thing in the world. But, even those of us who generally strive to use active voice occasionally fall into passive voice. The key is to recognize when you’re doing it and decide whether the sentence you’ve created could be improved by changing the voice.
The second way to immediately improve your legal writing is equally simple. Pare back the number of words you use to say what you’re trying to say. This was something my mentor taught me when I was a baby lawyer and I’ve generally tried to adhere to the principle, at least when writing to a court or opposing counsel. Basically, every word in any sentence should be necessary. Nothing extraneous. This will automatically take care of the tendency to include “herein” and other pointless words. It also forces the writer, you, to think about what you’re trying to say and how to say it in the clearest way possible. Judges and clerks appreciate clarity.
Now. This second “way to immediately improve your legal writing” is not a rule. It’s just an approach. And, it’s an approach I freely disregard when I want to emphasize something through repetition or diction (word choice). Hell, I often write entire paragraphs in the passive voice and include a lot of extra words. But, when I do it, I do it purposely, usually for effect. Otherwise, I strive to write clean, spare, Hemingway-like sentences, in the active voice, as free as possible of legalese.* (*Ok, I’ll admit an affinity for ancient latin phrases like sua sponte, ab initio, inter alia. I know that writers who know what they’re talking about, as opposed to armchair poseurs (who me?), have zero tolerance for latin phrases. If I give in to the urge to use them in an early draft, I almost always delete them.)
There. If you struggle with your legal writing, try these two suggestions. I guarantee you’ll see results.
Learn MoreA great post on Associate’s Mind, entitled “Millennial Jurors: Entertain Us,” discusses the challenges facing trial lawyers trying to communicate with Gen-Y jurors. In addition to prognostications about how these young adults can’t sit still and pay attention for the hours needed to take in information during a jury trial (how will they check their smartphones?!?), the post (which itself references an article in the Texas Bar Journal) notes how information needs to be presented to Millennial jurors in shorter visual “bites,” as opposed to purely verbal, format. Better make sure it’s not boring, either.
Undoubtedly a cottage industry will sprout from within the ranks of jury consultants and trial support firms of “Millennial specialists” who claim to know the secret to engaging Gen-Y jurors. But I don’t think the shorter attention span, and increased need for engaging visual, as well as verbal, content is really that new or a bad thing at all. I’ve written elsewhere how trials are too long and taxing on jurors’ minds and attention spans. Anyone trying cases in the past 25 or 30 years knows that a purely verbal presentation–without visual aids (even rudimentary visual aids) is risky, even if the subject matter is pretty sexy.
I think that, while the (alleged) changes in attention span, and increased appetite for visual stipulation seen in Gen-Y (and presumably later) generations might be lamented by parents, educators, psychologists, novelists (and other print media writers) and others, it should not necessarily be lamented by those in the business of trying cases. Rather, like any development, it should be prepared for and embraced. It is true that evidence will need to be presented differently if it’s going to get through to Millennial jurors, and this will require some reflection and research. (Perhaps more in-depth research than was undertaken in developing the Texas Bar Journal article, which was simply a survey of law school students.) And, probably, some trial and error.
Turning the coin over, though, there will surely be evidence that only the younger generations will “get,” at least at first. For example, while it’s commonplace now for defense lawyers to scour the internet for impeachment evidence, there are older jurors who don’t surf the internet and don’t understand “The Facebook,” Twitter or LinkedIn. Cases involving new media, reality television and certain progressive technologies might be completely foreign to more senior jurors but completely familiar to members of Gen-Y. (OK, I’m a little biased because I practice in Los Angeles, where every case will someday be “pre-tried” on TMZ). In short, there should be a place at the table for every kind of juror. The challenge to the trial lawyer is to engage, as best as possible, with jurors of every generation, not just the over-30 demographic.
We’ve got to raise our game, or get out of the way.
Learn MoreYesterday I wrote about why discovery should be limited to questions or requests which are directly calculated to lead to useful information. I just need point out a single exception to this view: discovery through depositions.
Depositions (live question and answer sessions, recorded by a stenographer, in which a witness is sworn to testify under oath) present an unparalleled opportunity to gather useful evidence. But I’ve found that sometimes it’s necessary to ask a few (or several) extra questions to get the kernel of information you’re looking for (or didn’t realize you were looking for).
Certainly depositions should not be an exercise in free association thinking. Whether the questioning attorney uses an outline or not, there is no question that preparation is needed and you should have a very clear idea going into the deposition what you’re trying to establish. But, beyond establishing exactly what you’re looking to establish, don’t be afraid to explore topics in greater–even random–detail. I’ve seen caselaw suggesting that discovery should not be a “fishing expedition.” When it comes to depositions, I disagree. Don’t be afraid to “fish.”
The most important skill in taking depositions is not asking clever questions, but listening. Only by listening closely, not only to the substance of the responses, but also to intonation, hesitation and a constellation of other emotional “cues,” can we recognize when we might be “closing in” on a sensitive topic. Why is it a sensitive topic? We’ll never know unless we ask the question, and a follow-up question, and another, until we explore it fully. This take patience and persistence.
This makes depositions longer and more costly, which flies in the face of my typical mantra to simplify and be more lean and cost-effective. But there are times that loose, creative deposition questioning will lead to evidence we would never discover any other way. The big reason these loose, unfocused questions can yield better results than a response to written discovery is that written responses are always “filtered” through the mind of (or completely conceived and written by) the witness’s lawyer. That filter is generally missing in a deposition.
Even with this caveat, however, my view remains that any kind of discovery–depositions or written questions or requests–should only be undertaken strategically. While written discovery typically yields information that is carefully choreographed by attorneys, deposition questions can yield important, game-changing evidence precisely because the information is not mediated through the mind of a lawyer. In other words, you have to dig deep to find the gold!
Learn MoreI ran across this post by Karen Koehler, at a blawg I really like, The Velvet Hammer, which highlights something I’ve known for a long time: you’re far better off trying a case against an experienced, high quality lawyer, than someone who’s a newbie or careless, or both. Karen draws on her experience trying a case against a really poor defense lawyer. She won, but in the post-verdict discussions with the jurors she learned that they felt so sorry for the defendant because she had such a bad lawyer that they felt they had to “even things out.”
I echo this sentiment, but I would also broaden it to include everything from the filing of a complaint through trial. “Challenged” lawyers make our job harder–and the case more costly–from day one. They don’t know the value of the case, its strengths or weaknesses, so they can’t every talk realistically about settlement (forget about actually reaching an early resolution). They don’t follow the rules, so it’s up to the responsible lawyers to comply with the rules, including venue-specific or judge-specific procedural nuances. It seems like they’re never available to address anything substantively. They fight battles over the wrong things–again wasting time. They file improper briefs, like sur-reply briefs, complete with brand new evidence, which fouls up the entire process.
We all started somewhere. I was fortunate to have great mentors and some really great training (which didn’t prevent me from still making some stupid mistakes). But the goal should be to improve and try to learn from mistakes, not to keep making them.
Lawyering is like tennis in that the quality of your opponent brings out the best in your game. I’ll take a Federer or Nadal any day.
Learn MoreFollowing my post yesterday about the California Bar’s exploration of a possible skills requirement, I was pleased to see that my alma mater, Loyola Law School, has rolled out a new “Concentration” program which, according to the Loyola Lawyer, will require students participating in the program to “participate in at least one semester-long simulation or live client experience.” The Concentrations are in Civil Litigation and Advocacy, Corporate Law, Criminal Justice, Entertainment/Media Law, Environmental Law, International and Comparative Law, Public Interest Law and Tax Law.
Nice work!
Learn MoreIn addition to learning as much as I can about my opponent and the nature of his or her practice through his or her website, I also use the following resources to do more research:
4. State Bar Information. It’s pretty rare, but I do occasionally come up against someone who’s been disciplined, even suspended. There are a number of reasons why a lawyer can be disciplined by the Bar, and it doesn’t always signify anything I consider relevant. But it could, so I try to find out as much as I can. For example, if the discipline has related to commingling client funds or failing to communicate with clients, it could mean the lawyer does not make it a priority to communicate with his or client. This could become important later, if we get into settlement discussions and it’s critical his or her client is being kept informed of my client’s offer (or demand). Information about Bar discipline is typically available on the State Bar website.
5. Track record. Does my opponent try cases? This may not be readily apparent, but if I review the jury verdict sheets (I still use the paper kind) I can sometimes see if he or she has tried any cases in recent years and, if so, what kind of case and what was the outcome. This information isn’t always available. But if it is, it can be very revealing. For example, it might show a pattern of taking meritless cases to trial and losing (or barely wining). This becomes important when evaluating the likelihood of an actual trial later.
6. Reported cases. Has my opponent participated in any appeals that led to reported opinions? Actually, Lexis and Westlaw even report cases that are not officially published, which further broadens the field. If he or she was the sole attorney representing a party on appeal, this tells me that he or she probably has a fairly in-depth understanding of the issues and law in that kind of case. If our new case involves the same issues, this is important information for me.
5. Finally, I may send an email to some close colleagues and see if anyone knows or has dealt with my opponent before. This can provide a great deal of useful insight. One thing I’m looking for in particular is my opponent’s reputation for honesty or civility. Is he or she someone I can trust when they promise to communicate an offer to his or her client? Will I encounter resistance if I seek a reasonable extension or continuance?
From this information, I can generally get a decent “feel” for my opponent before I pick up the phone to call him or her and introduce myself (which I always do). Over the years, I’ve found different information useful for different reasons. Often, however, I know I’m going to be looking for leverage against my opponent or his or her client. This can come from a variety of sources, including “situational leverage,” which I will discuss in future posts, such as a disinclination or financial inability to take a case through trial. The earlier I learn this the more I can shape my defense accordingly.
One factor to which I never give any weight, which some might find surprising: where my opponent attended law school. I’ve encountered lawyers trained at the very best (ranked) law schools who had trouble knowing where to sign their last name, and really first rate lawyers who attended lesser ranked law schools. I usually find experience level to be a far more telling predictor of competence in the courtroom than law school ranking.
Learn MoreFew would argue with the suggestion that a crucial skill for any lawyer who makes a living helping clients resolve disputes is the ability to persuade. Anybody can look up a case. And, while novel arguments or clever strategies can enjoy a certain symmetrical beauty, the ability to persuade, to sell, is ultimately what separates a good or great lawyer from the merely adequate. To this premise, I would add that the ability to write, to string together sentences in a clear, articulate and persuasive manner, is the most crucial skill of all and one clients should absolutely insist upon.
Why is writing such a critical skill to our trade? Conceptually, persuasive writing doesn’t just require a command of language, it compels organization. Even a point delivered orally requires a structure, if it is going to persuade. Clear writing always embodies this structure. It reflects the ability to conceptualize and frame an argument. Like the frame of a house, a clearly framed argument helps guide the reader—often a judge—follow on the journey to the desired conclusion. It lays a firm foundation for the real magic which, in the context of the law, is the synthesis, or interweaving, of evidentiary facts with a governing rule. There is no substitute for the ability to organize and frame an argument.
In modern civil disputes, it is always a written instrument—a complaint or claim—which sets a case in motion. While it’s certainly possible to win a massive verdict or coax a settlement out of a case premised on an inartfully drafted complaint, the complaint frames the issues, sets the tone of the case, and introduces the parties and their lawyer. If the complaint is sloppy, exaggerates or overreaches, it underwhelms both the judge and the lawyer on the receiving end. The judge may become prejudiced. Equally important, there can be a subtle, almost imperceptible, shift in the balance of power between the opposing lawyers. Respect between counsel must typically be earned; it is rarely presumed.
Most crucial of all, ask any civil trial or appellate judge and you will hear that, in all but the rarest instances, an argument is won or lost on the quality of the papers. This is not to discount the importance of having favorable law or facts. But good law or compelling facts are worthless if your lawyer has not articulated them in a clear and persuasive manner.
Clients should demand their lawyer have impeccable writing skills!
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