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

The Ability to Organize

Great trial lawyers spin plates.  Lots of plates.  (Those of you who do not remember "The Ed Sullivan Show" may not appreciate this metaphor. Learn about it here.)  Law firm management requires time. Training of associates and others requires time. Bar associations require time. Families require time. And then those pesky clients ….

Thus, a great trial lawyer uses his or her best efforts to be efficient. This is particularly true in a contingent fee practice (other things being equal the efficient lawyer receives more money for less work) but is also true in a hourly billing practice (great trial lawyers work to maximize efficiency to lower client costs). Part of being an efficient lawyer is the ability to organize or, at a minimum, recognize the lack of strength in this area and thus possess the willingness to allow another to organize for you.

The Ability to Pull the Trigger

Trial lawyers a required to make a large number of decisions. Some are minor (e.g. do I ask this interrogatory in this case?) and some are major (e.g. should I settle with one of multiple defendants in a case in which several liability applies?).

Great trial lawyers have confidence in their judgment and know that, after due consideration of the relevant factors, their decision will usually be right. They know that even if their decision is wrong that most problems that arise from that decision can be fixed and, if the original issue is such that an erroneous decision cannot be fixed, more caution is required in the decision-making process (but a timely decision must still be made).

Great Trial Lawyers Understand the Importance of Depositions

Great trial lawyers understand the value of depositions, and whether the deposition is taken personally or the task is delegated to another, go into a deposition with clearly defined goals determined after adequate preparation. The diminishing number of trials means that many cases are won and lost in depositions. Indeed, virtually every deposition affects the value of every case.

Yet, a great trial lawyer need not take all of the depositions in any case or any of the depositions in a given case.  This is a task that can be delegated to another comptent lawyer.

Great Trial Lawyers Learn the Facts.

I was in a deposition several months ago in a case that  involves an intersection wreck.  There are  several different plaintiffs represented by several different lawyers, several defendants, and counsel for a UM carrier.

My conversation with one of the lawyers caused me to wonder to ask if he had ever been to the intersection where the wreck occurred.  I asked him if he had. He had not.

Here are the opening paragraphs of my December 15, 2007 post that gave rise to a series of posts that has garnered a good deal of attention:

I participated in a panel discussion at for the Young Lawyers Division of the Tennessee Bar Association on Friday and was asked this question: what does it take to be a great litigator?

6. Great Trial Lawyers Don’t Cheat

There are lots of opportunities to cheat in the practice of law. You can withhold information during the discovery process. You can improperly coach a witness or client. You can knowingly violate orders on motions in limine. You can knowingly violate the rules of evidence or the law of trial. You can mis-cite case authority or misrepresent facts to a trial judge or appellate court.

And sometimes cheating can help you win. A weak trial judge won’t call you down or impose sanctions. The victim of the improper conduct doesn’t discover it or discovers it too late. And when you start cheating and aren’t punished for it, you keep doing it, in part because it has worked for you in the past and in part because you are afraid that you will lose if you don’t.   And you can’t stand to lose, or you wouldn’t have cheated in the first place.

5.  A Great Trial Lawyer Maintains A Reasonable Caseload

In Part 4 we discussed the fact that great trial lawyers take time to think about their cases. And we mentioned that many lawyer argue that they don’t have time to think.

I suggest that there are only four possible reasons why lawyers don’t have time to think. First, a lawyer who doesn’t have time to think is not working hard enough. Alternatively, a lawyer who doesn’t have time to think has too much work. Third, it possible the lawyer has an appropriate caseload and is working an appropriate number of hours but is not operating efficiently. Fourth, a lawyer who doesn’t have time to think can be lazy.

A Great Trial Lawyer Takes Time to Think

It is easy to get lost in the daily grind of litigation. The phone constantly rings. The computer’s “ding” tells us that another email has arrived. Each piece of mail brings another task and another deadline. Each fax brings bad news, especially those faxes that arrive after hours.

It is easy to fall into a reactive mode and then find yourself scrambling to do what you should have done long before. Deadlines get extended or outright missed. Interrogatory answers are incomplete. Your opponent’s ridiculous objections to discovery go unchallenged. You think about the need for a particular type of expert later than you should and end up using the only one you can find because the “good” ones are too busy to work on a short time-table. Your failure to follow a scheduling order results in your client’s case being continued to a date six months later, and then she gets in another car wreck and injures the same body part. And so on.

2.  A Solid Knowledge of the Law of Evidence.

You have to know the facts.  But mere knowledge of facts doesn’t do your client much good.  You have to know how to get those facts before a factfinder.  In other words, you need to understand the law of evidence. 

The relative paucity of trials makes it difficult to keep current on the law of evidence.  And simply keeping current on case law doesn’t do you much good – there are relatively few civil cases that discuss evidence issues.  (Criminal law is another matter.) 

I participated in a panel discussion at for the Young Lawyers Division of the Tennessee Bar Association on Friday and was asked this question:  what does it take to be a great litigator?

I knew in advance that I would be asked that question and gave the matter a good deal of thought driving from Atlanta to Nashville Friday morning.  My response seemed to go over pretty well so I thought that I would share the thoughts on this blog.

I changed the question to "what does it take to be a great trial lawyer?"  I chose "trial lawyer" over "litigator" because I think that the readers of this blog  tend to view  "litigators" as paper-pushing big firm lawyers who don’t try cases.  It is true that there are a significant number of lawyers in litigation departments in big firms who will never see the first or second chair of a jury trial, but it is also true that there are some great trial lawyers in those firms.  My goal is identify the attributes of great trial lawyers, regardless of the type of cases they try, who they customarily represent, or whether their office is over the bank on the town square or in an all-glass office tower.