[For Lawyers] To Be A Trial Lawyer
Originally published in OC Lawyer magazine — February 2017
To be or not to be—that is the question: Whether ‘tis nobler in the mind to suffer the slings and arrows of outrageous fortune or to take up arms against a sea of troubles . . . .
These, of course, are the immortal words William Shakespeare put into the mouth of Hamlet. I think the words of the dark prince have meaning for trial lawyers.
I was recently asked to prepare and deliver a talk on the topic of “What Does it Take to Be a Trial Lawyer” for “Mentors on Demand” for the Orange County Bar Association. I immediately asked, “Why me?” Not because I’m not a trial lawyer—I am. It is just that whenever you ask any trial lawyer this question, you are likely to receive different answers. After all, whenever you have two lawyers in a room, you have at least three opinions. But, the question intrigued me. I mulled it over and I think I have something to say on this topic, and this article is a longer version of that presentation.
John Mortimer, the English barrister and creator of the fictional barrister Rumpole of the Bailey, said: “No brilliance is needed in the law. Nothing but common sense, and relatively clean fingernails.”
I agree—to a degree. You need not be brilliant, and I am Exhibit One. Nonetheless, I believe there are some certainties that are true of every trial lawyer.
Ask any trial lawyer and I’m sure they would agree: the life of a trial lawyer is difficult. The law is a jealous task master and trial work is the meanest master of them all. There is almost always more work to do. Every time I have answered “ready for trial,” I knew that, if given just a little more time, I could have been even more ready. I suspect this is true for even the very best of trial lawyers who have legions of associates and support staff . In the end, it all really comes down to the one who will be standing in court, choosing which law and facts are thought to be most persuasive, making on-the-spot judgment calls to weed out the less desirable jurors, presenting the opening statement, calling witnesses in order to obtain evidence and, finally, delivering what is hoped to be a convincing closing argument that will deliver the result for which one was retained. This is the life of a trial lawyer.
When the famous trial lawyer Gerry Spence was asked why, at this later stage of his career he wanted to continue to be a trial lawyer, he reportedly answered, “It’s the best way I’ve found to learn about myself.” I agree with Gerry Spence. I, too, have found that every trial is an inward journey. As you lie awake on the Sunday night before answering “ready” on Monday morning, if you are a trial lawyer, you come face-to-face with your own character qualities as well as your own weaknesses. Some cannot bear up under the pressure, and quit the trial bar to find other lines of work. Others yield to self-destructive patterns in an effort to cope. Those who survive this crucible inevitably discover strengths and courage they may not have otherwise known.
Another famous trial lawyer, Rick Friedman, calls trial work a combination of political science (where the rules of society are enforced), applied psychology (where basic psychological principles are observed in the interaction and conduct of the judge, jury, witnesses, and lawyers), and applied philosophy (where the participants struggle with the weighty questions of “What is truth?” “What is justice?” “What can we really know about any subject?” “What is fair and moral?” “What deserves punishment or reward?”). I agree with Rick Friedman. Trial work is unscripted live theater. In the beginning of our trial practice work, we are so consumed with the basics of just getting through to the verdict, we may not be aware of these greater concepts going on in the minds of the others in the courtroom. Nonetheless, each of these unspoken questions is answered in one way or another as the judge rules in the courtroom and the jurors contemplate and arrive at their verdict. Failure to understand and meet the challenge of answering these questions will affect every trial.
I’m sure you are aware that there are countless resources that can provide you with information about the skills and techniques you will need to prepare yourself for trial. I have read many of them, and find many of them useful. The purpose of this article, however, is to encourage you to explore the inner self. So, for what it’s worth, here are my bedrock principles of achieving your goal of becoming a trial lawyer.
In my opinion, if you are to be a trial lawyer, you must have at least three things: persistence, determination, and love.
First, you must be persistent. If you can learn something, it is a skill. If it is important, but innate, it’s a talent. Being a trial lawyer is mostly skill, and I’m afraid that, for the best of them, it is always at least a little bit of talent. Being a good trial lawyer is a skill that can be learned, but you must be persistent. Here are four basic principles that I can only touch on briefly. They have served me, and others, very well over the years:
- Be personable: The “self” you bring into the courtroom must be genuine and reasonable. If you are known to be overly aggressive, you may need to sand off the rough edges. People believe those they trust. People trust those they believe are reasonable.
- Be professional: Try your case with passion and use your skills and talents to achieve a positive result, but remember that you are an officer of the court and expected to conduct yourself professionally at all times.
- Be prepared: It almost goes without saying, but I’ll say it anyway: success in almost any endeavor is directly related to the preparation that went into the task.
- Be persuasive: Trial lawyers are in the business of helping other people make up their minds. This is a part of everyday life, but never more significant than when you are trying to convince a jury of the justice of your cause. By turning chaos into order, a ramble into a coherent story, you are on the path that grabs the attention of the jurors in order to agree with the rightness of your claims.
Second, you must be determined. By this I mean you must have a single-minded strength of character.
You cannot learn to play the piano by studying technique books and listening to music. I know how to play the piano—you just sit on the piano bench and push on those white and black keys. But nobody would confuse the noise I would make for music.
To be a trial lawyer, you must actually have the courage to try cases. Harper Lee, in her book, To Kill a Mockingbird, put these words in the mouth of Atticus Finch: “Real courage is . . . When you know you’re licked before you begin, but you begin anyway and you see it through no matter what.”
For many reasons, trials are getting more and more infrequent. I believe the twin factors of the rising economics of trial and risk avoidance are the major reasons. Thus, you must be determined to make the most of every opportunity to learn the skills and develop your talent.
By the way, even when you get a trial, in my opinion, you cannot learn what you need to learn from raw juror feedback or the bare results of the trial itself. To improve, you must take the course of honest self-reflection and, whenever possible, obtain the authentic feedback from more experienced colleagues.
Third, you have got to love the profession and love others. If you do this for very long, you are going to suffer setbacks. If you try enough cases, you are going to win some and lose some. Perhaps you will win some you shouldn’t have won and lose some that you shouldn’t have lost. Such is the life of a trial lawyer. There are always risks. To keep going you will need to love the job and love others.
I obviously do not mean “love” the way you may “love” ice cream or the way you “love” your significant other. You have to love the profession and others as love is shown in the New Testament of the Bible. There, love is demonstrated as selfless and sacrificial. This kind of love puts the best interests of others above one’s own interests.
In the end, in my opinion, you cannot maintain a healthy work-life balance if you’re doing this for any other reason. Don’t do it for money. Although you may be well paid, only the superstar lawyers become enormously wealthy. Furthermore, there are plenty of other ways to make a lot of money. And don’t do it for fame. Although you may get your name out there by trying cases, if fame is what you really want, you can buy full page ads in the Orange County Lawyer and elsewhere for a lot less money and grief.
And besides, wealth and fame are all relative. In the long run, your reputation is built on what you’ve done, not what you’re going to do. A good reputation is built on what you’ve done well, not just what you’ve done. In the end, unless you become and continue to be a trial lawyer for love, you have chosen the path of a fool.
Let me end this with a quote from Ray Kroc, the founder of McDonald’s:
Nothing in this world can take the place of persistence. Talent will not; nothing is more common than unsuccessful men with great talent. Genius will not. Un-rewarded genius is almost a proverb. Education will not. The world is full of educated derelicts. Persistence, determination, and love are omnipotent.
I hope these thoughts will help guide you toward a more rewarding career as a trial lawyer.