As seen in Litigation, Volume 26, No. 3, Spring 2000 (American Bar Association)

Nearly 30 years of practice should teach something. I have represented clients in virtually every sort of proceeding imaginable, from 30-second bail hearings in the bowels of the Philadelphia criminal courts to multi-month commercial jury trials in federal courts all over the United States. I have won, and (Dare I admit it?) I have lost. And after three decades, I know that there is a reason we call it "practice."

Every day the endless adventure of learning about our craft continues. It is endless because the art of trying cases is as complex as human nature itself; the most basic questions about human nature itself; the most basic questions about human nature must be answered anew in every case. What makes people - judges, jurors, adversaries, witnesses - behave the way they do? What persuades them? How can you tell whether a juror can render a fair and impartial verdict, much less a verdict in your client's favor? When is your adversary being genuine, and when is she bluffing? And will the witness (yours or theirs) be believed, appear sympathetic, be found to be lying?

Confronting these questions is the science - and the art - of litigation. It is not serendipity. If you learn the science and study the art, you can take away some lessons. As in life itself, experience is the best teacher.

Some elements are common to 30-second bail hearings and multi-month complex jury trials. Take the client, for instance. To be an effective trail lawyer, you must make your client part of the process and part of the team. This means understanding what clients want and expect, answering their questions, and addressing the concerns that they may not know how to articulate. The criminal defendant accused of purse-snatching and the multinational enterprise betting its multibillion-dollar corporate existence on one lawsuit have at least one thing in common: both want their trial lawyer to fight for them, to make the case, and to win. They want more than careful issue identification, familiarity with the facts, good research, and sound and clever arguments. They want their attorneys to push their point, advance their position, speak for them. Now, that may seem obvious. But it is often forgotten in the forest of identifying issues and mastering the facts.

Clients also want a professional job - a well-prepared, thoughtful, skillful presentation. And beyond that, every client is entitled to ethical and independent advice provided by an officer of the court who is obligated to exercise judgment independent of any personal considerations. Your job is to represent the interests of another, and you should do so zealously, intelligently, and professionally.

As the litigator learns from practicing his craft, he also teaches. In fact, a key part of the litigator's job is to make sure that the client understands the system. And the first lessons are often the most important. What must you explain to your client before you embark on the course of litigation?

In our legal system, every person and entity is entitled to a day in court. All aspects of the American judicial process flow from this. That is why a frivolous claim - totally unfounded in fact and without legal basis - may indeed be permitted to progress. If the plaintiff asserts that the claim is based on fact and swears to it, that is usually enough to engage the fact-resolution process called a trial. Business clients often find it hard to understand this and even harder to accept it. Because other countries do not share this approach, foreign businesses find it especially difficult to understand. So, early on, you must educate your clients to be patient. Letting the judicial process resolve the matter will take time. Make sure your client understands that.

Recently, I participated in the trial of a national class action against more than 20 of the wealthiest business in America. The litigation went on for years and included interlocutory appellate review. During the course of the proceedings, all but a few of the defendants settled for hundreds of millions of dollars. Those defendants knew that the plaintiff's claims were baseless, but they lacked the courage and discipline to await the outcome of the judicial process. The few defendants who did wait were "rewarded" with a jury trial that lasted months. At the close of the plaintiff's case, however, those defendants were given judgment as a matter of law (the old directed verdict), and that decision was affirmed on appeal. It is your job to help your client understand that even a meritless claim may take years to resolve, but hanging in there may be worth it.

You also need to educate your client about the rules of discovery and evidence. For instance, you may have to explain why information sought by your adversary that does not seem relevant to the case must be produced anyway. Or you may have to explain why deposition questions can address the employment history and educational background of every employee in the company, even through that information will not be evidence at trial. And you may even have to explain why seemingly irrelevant information is admitted into evidence. When in doubt, courts usually follow the rule that it is better to admit evidence than to exclude it. Often, they are right.

You must also prepare your client for the pressure to settle. And you must help him to understand that this pressure can be a good thing. Every moment during the litigation process can and should be viewed as an opportunity to resolve the dispute. In a genuine dispute, a settlement that leaves both sides unhappy is often better than a trial that results in a big winner and a big loser. The reason is simple: smart businesspeople are in a better position to resolve their own disputes than the court or a jury because informed people can fashion better solutions to problems than ignorant people. For that reason, the fairest result is often a settlement that pleases neither side.

Sometimes, clients want too much information - or at lease information about the wrong things. One of the questions that clients frequently ask is, "What is your won-lost record?" What is your answer? "Sixteen wins and four losses?" Probably not - it is probably something like, "I settled a similar case very favorably under the circumstances," or "I was successful in obtaining a verdict of less than half of what the plaintiff wanted in a similar case." The responses may range from an articulate non-response to a considered calculation of the trials you have taken to judgment, the number of judgments in favor of your client, and the number in favor of your opponent's client. But none of that really matters.

There is nothing wrong with the question, except that it is looking for the wrong answer. Anyone who has tried cases knows that a lawyer with a perfect record is one who does not try cases that are seriously contested - that is, a lawyer who settles every tough case and maybe a few that are not so tough. Winning every case is not the litmus test for a good trial lawyer, and it is your job to help your client understand that.

When a client asks the question, he is seeking reassurance that you will do a good job and fight for his interests. My answer is, "I've lost and won my share of cases and learned a lot from all of them." A client should value the lawyer who has tried and lost more than a lawyer who is unwilling to show the courage to try and lose. And, there is often a value to taking a case to verdict even when the outcome is adverse. In fact, a loss may be less adverse than any settlement that could have been achieved. For the trial lawyer, losses often provide more valuable experience than victories. Answer the won-lost question not with a statistic but with a discussion.

One of the most difficult tasks faced by litigators is taking on emergency litigation for a new client. Suppose that a business is sued in a foreign jurisdiction and plaintiff's counsel seeks emergency relief. The client gets your name and telephone number from a colleague, and a meeting is arranged. The client does not have time to solicit bids, conduct a beauty contest, or survey the market. You are the first available candidate, so you are the choice - at least until there is a major disappointment.

The client does not know you, and you do not know the client. The client worries whether you will fight for victory; you worry whether the client is confident enough in you to tell you the truth. The situation is rife with danger.

In that potentially explosive environment you, the trial lawyer, are expected to form a trust relationship with your new client. The new client must tell you all - the unvarnished truth. Nowhere else in our culture do we expect such instant and complete trust: tell a stranger all the wrongs you have committed. But unconditional trust is what the system demands. So you must convince your client that you can best represent her if there are no surprises: no unexpected revelations from the documents, depositions, and certainly not the witness stand.

How do you secure the instant confidence of your new client? The best you can do is to be aware of the dangers and try to anticipate the client's concerns. Tell the client how the process works. Explain why disclosure is inevitable. Tell a few well chosen war stories - incidents where the client hid or forgot a document and the case was lost. Let your client learn from your losses.

I have no doubt that I have learned more from my defeats than from my victories. Early in my career, I had two jury trials in relatively large commercial cases scheduled back to back. Each would take about two weeks to try. In each, I represented the only defendant. In each, I thought I could prevail. But I did not. At the time, I experienced the awful pain of defeat. But from that pain came experience: each of those defeats taught me lessons I have never forgotten.

One of the cases actually made new law at the expense of my client. The court admitted evidence of future lost profits for plaintiff's new and untried business based on nothing more than a potential customer's expression of interest in a product that plaintiff never successfully made. Worse, the jury awarded those lost profits.

The dispute arose after my client let the plaintiff use some idle machinery in its factory to experiment with flocking rubber mats. Unfortunately, the flocking - little pieces of green plastic - flew all over the plant and contaminated the white fabric that my client was manufacturing for sale. Not surprisingly, my client asked the plaintiff to leave. The plaintiff then filed suit, seeking future lost profits for potential sales of its experimental products. The only damage evidence at trial was one potential customer's expression of interest in the product that the plaintiff had hoped to make.

I expected an easy win. After all, how could a court charge a jury on future profits when the product from which the profits were allegedly lost had never been made? (I still do not understand this one - 20-some years later!) Because it was so obvious to me, I was not prepared to provide the court with case law at the charging conference. The next day was too late. The court charged the jury on potential lost profits, and the jury returned an award. The appellate court affirmed.

I am responsible for that precedent. I have used it myself to my client's advantage in later lawsuits. But from this defeat I learned to be ready to argue the propositions of law that are key to the success of my client's position even if the propositions seem beyond dispute.

In the second early defeat, I was beaten by a skilled opponent. I saw firsthand how skilled advocacy could make even trivial bookkeeping irregularities seem like serious corporate fleecing. The result was a major loss for my client. I underestimated my adversary and, perhaps, did not fully realize what good advocacy could achieve. I learned.

Of course, you can also learn from victories, especially from those that you do not expect. I once obtained a large verdict for a plaintiff in a medical malpractice case that I considered rather weak. I won because the defendant, a highly regarded surgeon, made the case seem more important than it was. The case arose out of a surgical needle that the defendant left in my client's chest during open-heart surgery when my client was a child. The surgery saved my client and allowed him to live a normal, active life.

Needle Point

More than 20 years later, my client discovered the needle and felt anxious about it. He and an expert attested to this anxiety, which was real but baseless. The body's defense mechanisms form scar tissue around foreign objects like surgical needles and prevent any movement. Everyone agreed that after 20 years, it would be far more dangerous to remove the needled than to leave it there. In fact, the plaintiff had been a boxer, and we could offer no evidence that the needle had moved one millimeter.

What did the defendant do in the face of these facts? In a word, too much. The day before his testimony, the defendant was not in court. When he took the stand the next day, he reported to the jury that he had been absent to have a surgical procedure performed on himself. A surgeon had inserted a plastic tube into his chest and had dropped surgical needles into it. He then had X-rays taken to show the insertion and movement of the needles during the process. He showed the jury these X-rays. After my client received a handsome verdict, one of the jurors said to me, "You were going to get nothing until that crazy doctor put needles in his chest. When we saw that, we decided that the case was more important that we thought." The lesson: disproportionate attention by the defense can lend credibility to questionable claims.

I once won a case that I might have lost because I asked a question on cross-examination without knowing how the witness would respond. You all know the old saw: never ask a question on cross-examination if you do not know the answer. You should also know the exception: do not be afraid to ask a question if the answer cannot hurt you but may be helpful to your case.

I represented the defendants on a petition for fees and costs following the trial of a class action securities fraud suit. The petition was well prepared and included exhibits substantiating the request.

On the list of expenses, a number of items were described as "Secretarial expense (O.T.)." After class counsel presented their petition through a lawyer/witness, I started my cross-examination. Soon after I began, I asked the totally innocuous question, "What does the notation 'O.T.' stand for?" The answer, as I expected, was "overtime." I then asked what I thought was another innocuous question: "How many hours per week must a secretary work before being entitled to be paid overtime?" I expected the answer to be 35 or 40 hours. To my surprise, the witness answered, "Every hour our secretaries work is charged as overtime because our secretaries work full time for other law firms and only work for us after the normal business day. Therefore, every hour of secretarial time is charged as an expense and at time and a half the normal hourly rate."

Needless to say, the court found this highly unusual; for that and other reasons the court concluded that class counsel had attempted to perpetrate a fraud on the court in the fee application. The lesson: question the obvious.

Our success as trial lawyers often comes from our application of certain universal principles of advocacy. Some of us understand them instinctively, others learn them from their mentors, but all of us use them - or, at least, we should. The principles are based on the art of advocacy, the social sciences, and entertainment. Trial lawyers must be able to apply each of these disciplines to their work.

To master the art of advocacy, trial lawyers must be social scientists. The science of learning, the science of human behavior, and even the sciences of anthropology and sociology are part of the trial lawyer's skill set. Jury selection, for example, is one area in which social science plays a major role. How do your know which is the right juror? Of late, jury consultants are hired to help us. And jury consultants can be helpful. But, ultimately, jury selection is the responsibility of one person: the trial lawyer.

When conducting voir dire, you need to know the basics. For example, you need to know how long you will be given to do it. In some courts, it takes a few minutes; in others, it may last hours or days. You also need to know how it is done. In some courts, the lawyers are able to conduct it without the judge in attendance; in others, the judge conducts it, and the lawyers remain silent.

When lawyers participate in voir dire, their role is crucial. The principle of primacy teaches that the first thing a person hears is what he learns best. Because the jurors have not yet formed an impression, you have the greatest change of creating a favorable one. The articulation of your position and the initial impression you make during voir dire are therefore critical.

Here, too, I have learned from my mistakes. Never ask a juror why he did not state his occupation on the jury form. I did, and the answer was, "Because I'm unemployed and on public assistance." The prospective juror (whom I did not select) did not appreciate that; the other jurors did not like the fact that I had embarrassed him.

Voir Dire Strategy

Sometimes, voir dire can reveal critical problems in a case. In a trademark confusion case, the defendant I r epresented had adopted a mark that, when described, sounded the same as the plaintiff's mark; actually, it looked different. During voir dire, with no visual examples permitted, virtually every juror expressed confusion; ergo, defendant loses. But the court, not wishing to excuse the entire panel for lack of impartiality, conducted an individual voir dire of every person on the panel and asked the prospective jurors whether they were so close-minded that they could not be persuaded that the marks were actually different. The court thus established a new criterion for serving on this jury: a willingness to commit to accept the possibility that the two marks were dissimilar. In a sense, the court had become my client's advocate, and the jurors who served changed their predisposition. I triad to capitalize on this by repeatedly referring to the voir dire in my opening and during my interrogation of the plaintiff's witness.

Although the rules of jury selection have changed over the years, the basic principles have not. In jury selection, the trial lawyer needs to learn and understand the biases and prejudices that will influence the jurors. Of course, it is impossible to predict outcomes from jurors' characteristics. A juror's intelligence may be related to occupation, but that is not always so. Race or ethnic background does not always predict sympathy. And, although defense-oriented jurors tend to be people who are in command of their lives and do not feel victimized by society, it is a challenge to learn that information by asking a few questions of a prospective juror. The basis for successful jury selection is often intuitive. Sometimes, you just have to trust your instinct.

In one case, contrary to popular wisdom, I chose to keep a lawyer on a jury. I represented the plaintiff in a breach of contract case involving an unwritten contract. I knew the geographic rule about oral contracts: north of the Mason-Dixon line, a contract must be in writing for a jury to enforce it; south of the line, a person's word is his bond, and an oral contract will be enforced. The case was being tried in New York City. I decided that, unlike lay jurors, the lawyer would know that an oral contract or an informal series of writings was sufficient to form a binding obligation. At trial, I proved the existence of the contract through a series of internal writings from the defendant's own files. The lawyer was chosen as foreperson. We won. My instinct proved correct.

In another case, my instinct was dead wrong. After I had obtained a $50 million verdict from a jury, the court permitted counsel to talk with any willing jurors. I had chosen one juror because she had the same ethnic background as the principal of my client, and I expected her to be sympathetic to him. I was wrong. I learned from other jurors that, but for her, the $50 million verdict would have been twice that size. In fact, the jurors told me, it took a lot of negotiating to get her to agree to the verdict that was rendered.

Much like any seasoned professionals, seasoned trial lawyers often operate on instinct. A trial lawyer's instinct is the product of both training and experience. Successful trial lawyers understand that America's judicial system, although grounded in the British common law, has the O. J. Simpson trial as its legacy and Perry Mason in its soul. Today, jurors have trouble lasting more than 25 minutes without a break and insist upon a live feed on a television screen before they believe that something has really happened. This means that effectiveness in the courtroom requires the ability both to teach and to entertain.

Primacy, frequency, and recency are fundamental principles of learning; for that reason, they are fundamental in the courtroom as well. The lessons of learning must be used in trial, and the client must understand that what is convincing to her as a businessperson may be irrelevant to the judge and jury. The story must be made simple, and its themes must be often repeated. In essence, the skilled trial lawyer makes the complicated simple enough for an ignorant factfinder to understand and convinces the jury based on that simple story. But to do that today, the trial lawyer must also be an entertainer.

A trial is theater. Think about staging, changing intensity, and breaking up concentration as you try your next case. Be imaginative in presenting evidence. If there is a way to use something that is three dimensional, do it. If you can explain something by showing an object to the jury, show it. Use visual aids, electronics, television monitors, videotapes, even pictures to keep the jury's attention. Now that jurors know about the availability of technology in the courtroom, they expect it.

Be certain that the jury actually looks at the important documents in your case. How many times have you seen lawyers examine a witness about a document in evidence without having a copy of the document in the hands of the jurors? How boring it must be for the judge or jury to have to guess at what is going on.

I like to use juror notebooks whenever the court permits. I also try to use electronic technology whenever I can. In fact, I use whatever I can to keep the jurors' interest and to help them remember.

A trial is a unique form of theater because everyone is on stage - the lawyers, the witnesses, the clients, and even the audience. I learned that during several of my early trials when my children came to court to see what their father did for a living. The first time, my adversary commented in closing argument that the jurors should not be sympathetic to me just because I had brought my children to court. A cheap shot, I through. Who would know that they were my children? Who would even notice? But after a later trial, the jurors themselves asked whether the young boys who had been in the courtroom were my sons. Although no one called attention to them, the jurors noticed. I understood why my adversary in the earlier trial through it best to try to neutralize the appearance of my two then-cute children. And I learned an important lesson: the jury watches everything and misses nothing.

Like it or not, dress, jewelry, casual conversation, body language, and facial expressions may play a major role in the jury's decision. At the end of one three-month tri al that I handled, the jurors commented that one of the lawyers had monograms on the cuff of his shirts. They noticed, and they drew conclusions about him because of that. Unfortunately, conclusions about the lawyer are ultimately conclusions about the lawyer's client.

Remember that the jurors come into the courtroom with absolutely no idea what to expect. Until they become acclimated, every second that passes is another second of confusion. They are looking - begging - for information. Any information you provide, even inadvertently, helps the jurors make decisions about you and your case.

A good trial lawyer thinks about the trial and the presentation of evidence from the time the client first walks through the office door. As you prepare the complaint o r answer, think about how the words will sound to the jury when they are read as an admission. The same goes for answers to interrogatories. As you prepare your client for her deposition, imaging her testimony as the opening argument of your adversary.

The videotaped deposition is the latest trap for the unwary. You prepare witnesses for depositions by reviewing the process with them and instructing them on the basic rules: tell the truth; pause before answering; give short answers; answer only the question that is asked; insist upon a fair question. Videotaped depositions require a different set of rules: dress as if you were in court; look at the camera; answer as if you were in front of the factfinder; recognize that a prompt response suggests an honest response and that rumination suggests contrivance.

Unlike the actor's stage, the lawyer's forum is not a set created solely to tell a story. In fact, the litigator's act is practiced in a real world of clients, adversaries, and judges. Performing in the imperfect arena of reality is part of the act.

Sometimes, clients are difficult; at other times, they are impossible. When they are, we need to appreciate their anxiety, answer their questions, and explain the process to them.

As for our adversaries, we must be ready to deal with the whole gamut, from Rambo to Lambo. I let my adversary decide the tone of the litigation. If my adversary wants extensions of time to be opportunities to inflict pain, I can play that game, too. But I will never allow myself to be put in a situation where I do something that I find offensive or embarrassing.

Litigators also need to be sensitive to the court. My experience has taught me that most judges handle their duties very well. In urban and rural areas, in the North and in the South, excellent judges and court officers dispense justice day in and day out. They hear cases that cover the range of matters I have handled over my career and then some. They are as expert as we make them and as ignorant as we allow them to be.

The best judges share certain characteristics. They set discovery deadlines and trial dates early in the life of the case, and they base the schedule on a realistic appraisal of the time necessary to prepare for trial. They make themselves available to the litigants to give prompt rulings on discovery issues and dispositive motions. They are impartial and avoid even the vaguest appearance of favoritism. They are friendly and courteous to both sides, always ensuring that no one feels "home-towned" or disfavored for some reason extrinsic to the facts or the law.

And, sometimes they do things out of the ordinary. In one case I tried, the jury was unable to reach a verdict despite lengthy deliberations. The judge deemed the jury hung on a Friday afternoon. He then turned to counsel and asked, "Are you ready to retry on Monday morning?" Why not? The case was fresh in our minds. Rest up and get on with it. As it turned out, we could not start on the following Monday; but we could and did only two weeks later. That is judicial efficiency at its best.

After all the analysis, practicing law is no different from any other life's work. It is a process, a journey, an opportunity to learn from experience. Win or lose, use what you learn from a piece of litigation to make yourself a better lawyer. Every time you try a case, you should be just a little bit better than the last time.

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