Articles Posted in What It Takes To Be A Great Trial Lawyer

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.

Closing Thoughts

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

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

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.

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.

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,

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.

The Courage to Tell The Client the Truth

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

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