How To Excel At The Basics As A Young Litigator
A year ago, I posted the Young Lawyer’s Guide To Legal Marketing. My thoughts haven’t changed, i.e., find a mentor and then “build your practice the way you’d built a cake store or a plumbing business: through superior quality, exceptional customer service, making calls and wearing down your shoe leather. Get your name out there and make sure it’s associated with quality.” And be generous with your time.
Within that post I quoted another article with ten lawyer marketing tips for young attorneys, which began with “#1 – Excel at the Basics.” Let’s elaborate on how young litigators improve their “basics.”
1. What Not To Work On: Outwitting Witnesses At Trial
I hate to break it to you, but you were sold a bill of goods. You will not spend every day on trial. Depending on your firm, there’s a good chance you won’t spend any time actually questioning witnesses. Some associates do indeed spend a fair amount of time in court, and some even conduct full trials, but trust me on this point: you will not have a single Perry Mason moment in which you win a big case by outwitting a formidable witness.
Don’t worry about it. You know what real trial lawyers talk about at seminars and conferences and the like? How they learned to stop playing tricks and start working on their persuasive methods, like by developing case themes with their evidence and by building credibility with the jury.
Last year one of the biggest verdicts in the country was a $1.5 billion jury award in Maryland, two-thirds of it in punitive damages, against Exxon over a groundwater leak of gasoline that contaminated over 200 wells with methyl tertiary butyl ether (MTBE). Do you think that, after deft questioning by plaintiff’s counsel, an officer for Exxon admitted they lied to local government authorities about the protective measures the company took? Of course not. Every last part of the case had to be proven, piece by piece, to the jury. How?
2. “Turn Every Goddamn Page”
There’s some great journalism and historical writing out there — one of the parents of two kids that go to the same pre-school as mine just won a Pulitzer doing some fantastic work — but there’s only one Robert Caro. There’s only one biographer who, thirty years after the fact, can uncover proof that LBJ’s election to the Senate in 1948 was stolen. He has a new LBJ book coming out (ten years after his last one; for all his virtues, he is not a model of dispatch), and the New York Times explored his method:
For the Johnson books, he has conducted thousands of interviews, many with Johnson’s friends and contemporaries. (Lady Bird spoke to him several times and then abruptly stopped without giving a reason, and Bill Moyers, Johnson’s press secretary, has never consented to be interviewed, but most of Johnson’s closest cronies, including John Connally and George Christian, Johnson’s last press secretary, who spoke to Caro practically on his deathbed, have gone on the record.) He has spent literally several years at the Johnson Library, in Austin, Tex., painstakingly going through the red buckram boxes that contain Johnson’s papers, and he has been the first researcher to open some of the most revealing files there. “Over and over again, I’ve found crucial things that nobody knew about,” he said. “There’s always original stuff if you look hard enough.” He added that he tried to keep in mind something that his managing editor at Newsday, Alan Hathway, a crusty old newspaperman once told him, after pointing out that Caro was the only Ivy Leaguer who ever amounted to anything: “Turn every goddamn page.”
“Turn every goddamn page” produces great journalism and historical works, and it wins cases. It is now your motto. Cases on TV are won through brilliant, impromptu cross-examinations at trial. Real cases are won through dogged investigation and by relentlessly investigating until you have both found and turned every goddamn page.
How do you do that?
First, ask your client to give you every document they have, and to explain what they are. Second, serve the opposing party with custom-tailored interrogatories and requests for documents asking for everything. You won’t get everything so, third, serve requests for admission demanding they admit those documents are all the responsive documents. That will get you more, but still not everything, so, fourth, notice the deposition of the records custodian for the defendant, at their place of business, with custom-tailored document classes identified. Fifth, when there, ask the deponent if they’re the most knowledgeable person about each class and, if not, ask who is, and then get that person to come down (remember, you’re already there and so are they), and ask them, and keep going until you’re confident you have everything you can get.
Did I mention you also need to scour the Internet, and to call other attorneys who litigated similar cases?
It’s a laborious, time-consuming process, and it’s not necessary for every case. But you need to learn how to dig for documents, and then, once you have them, how to develop the patience to “turn every goddamn page.”
3. Learn How To Take And Defend Depositions
It was a great line, but I think Gordon Gekko misquoted Sun Tzu on “every battle is won before it is ever fought.” The closest Sun Tzu said was: “Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.”
Paraphrased: “Victorious litigators win in discovery and then go to trial, while defeated litigators amble through discovery and then seek to win at trial.”
You need to know how to prepare your witnesses, when to plan your depositions, what order to do depositions in, what documents you want them to bring, how to prepare an outline, how to react to tangents in the testimony, how to follow up on new information learned, how to handle obstructionist lawyers, what kind of coaching at depositions is sanctionable, and how to tell the difference between dishonest & knowledgeable, dishonest & ignorant, honest & knowledgeable, and honest & ignorant witnesses. Know the difference between known unknowns and unknown unknowns.
You get better at depositions by preparing for them, by doing a lot of them, and by taking time to think about and to evaluate what happened at prior depositions.
You don’t have to re-invent the wheel, though, and there are resources out there. Last week I received a review copy (one of the few perks of blogging) of D. Shane Read’s Winning at Deposition. I put it to the test by looking up “Asked and Answered,” one of the most common objections raised during depositions, and was gratified to see Mr. Read correctly describe the objection as baseless. That was enough to make me look through the rest of the book and, indeed, it succinctly captures many of the lessons attorneys should — but often don’t — learn about taking and defending depositions. It’s the cost of a fancy dinner with your spouse. If you’re still in the learning phase about depositions (and if you’re reading this post with “Young Litigator” in the title, you probably are), then check it out.
4. Learn How To Write A Brief The Judge Will Actually Like
I have written a lot about Legal Writing on this site. Like how:
- a string cite of a dozen cases supporting an obvious point is a bad idea
- lawyers underestimate the value of legal writing
- the basic rules of good writing you learned in college still apply in the law
- you shouldn’t listen to Supreme Court Justices because the kitchen sink approach has its benefits
But, really, you don’t need to go much farther than Judge Dale Fischer on the record in the FDIC / IndyMac case:
I don’t know why lawyers do this, and there’s a lot of them in the room so take heed, all of you, language like failures are staggering, violations of this magnitude rarely occur, stunning display of incompetence, bitter irony, breathtaking dereliction of duty are not only unpersuasive, they’re somewhat annoying. I don’t have time for rhetoric. I’m really, really busy. Why anyone would want this job, I don’t know…
But in any event, it’s just – I don’t know whether you stay up nights trying to think of clever phrases, but trust me, no judge that I’ve ever spoken to has ever said, Boy, can that guy turn a phrase. They only say, Boy, why didn’t he get to the point.
Don’t turn phrases. Get to the point.
5. Be Patient
When I turned 30, a fellow trial lawyer told me: “when I turned 30, I thought people would finally take me seriously. When I turned 40, they did.”
This is a profession, not a hobby. It takes time. The best time to plant a tree is 30 years ago. The second best time is today.