TBA Law Blog

Posted by: John Day on Oct 30, 2008

Journal Issue Date: Nov 2008

Journal Name: November 2008 - Vol. 44, No. 11

I recently participated in a panel discussion for the Young Lawyers Division of the Tennessee Bar Association and was asked this question "what does it take to be a great litigator?" I changed the question to "what does it take to be a great trial lawyer?" I chose "trial lawyer" over "litigator" because I think many people 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 was to identify the attributes of great trial lawyers, regardless of the type of cases they try, whom they customarily represent, or
whether their office is over the bank on the town square or in an all-glass office tower.

A few preliminary thoughts:

First, there is no particular order to this list. That is, I am not listing the attributes of a great trial lawyer in order of their importance.

Second, this compilation is not my view of what is necessary to comply with the standard of care as a trial lawyer. I am identifying those attributes of lawyers who practice above the standard, who are truly at the top of the heap.

Third, a great trial lawyer need not have all of these attributes. Every lawyer has at least one weakness. A great trial lawyer knows his or her weakness(es) and figures out a way to work around or minimize each of them.

Finally, one or more of you (perhaps all of you) may ask what qualifications I have that make me think I can create a list of attributes worth reading. That is a fair question. My response is that I was trained by a great trial lawyer (John T. Conners Jr. of Nashville) and because of him I have been fortunate enough to have been swimming in the deep end of the litigation pool for 27 years. By that I mean that because I worked six or more days a week with Mr. Conners for the first 11 years of my career, I had the benefit of working on some significant cases early in my career. Most of our adversary counsel were very good or even great lawyers. I left my former firm more than 15 years ago and my practice since then has been such that I customarily face lawyers who most people agree are very good or great lawyers. It is my interaction with these lawyers, plus my conversations and interactions with the thousands of lawyers I know in Tennessee and around the nation, that form the basis of these words.

1. A great trial lawyer knows the substantive law applicable to the cases the lawyer evaluates, accepts, settles and tries.

Great trial lawyers make intelligent case selection decisions based in part on applicable substantive law. This does not mean that a good trial lawyer takes only cases that can be won " if that were true there would be no great trial lawyers who practice insurance defense (they do not get to pick their cases).

No, a good lawyer knows the law so that if the lawyer has an opportunity to accept or reject a case (or a legal position in an accepted case), a reasoned judgment is made about the merits of the case (or the position) on the known facts. A good lawyer does not have to have the law memorized (although that is a plus) but needs to know the limits of his or her knowledge and look up what he or she does not know. This task can be delegated to a different lawyer, but a good lawyer knows what needs to be researched and has sufficient experience and judgment to look for weaknesses in research done by others.

The law is important because it is the framework upon which the entire case is constructed. Facts are important. The ability to persuade is important. Lots of things are important. But the fact of the matter is that there are lots of wrongs in the world for which there is no remedy. And there are lots of wrongs for which there is an ineffective remedy. A plaintiff's lawyer who seizes upon wrongs without regard for the law will go broke or, at a minimum, will have some very unhappy clients. An insurance defense lawyer or a business litigation lawyer who does not know the law cannot effectively evaluate risk.

My belief that a great trial lawyer knows the law does not mean that one should not push the legal envelope. Great lawyers push the envelope as appropriate or necessary. But a great lawyer selects a case or adopts a position knowing that the envelope needs to be enlarged, and therefore is not surprised by a legitimate motion to dismiss, a motion for summary judgment, or a motion in limine. These attacks are anticipated and therefore pleadings are constructed and evidence is gathered to meet these attacks in a timely, effective manner. A great trial lawyer may lose such a fight, but not because of a failure to anticipate the attack, frame pleadings appropriately, gather evidence, or make appropriate arguments.

A great trial lawyer keeps up with changes in the substantive law in the lawyer's practice areas. No lawyer can keep track of every case in the lawyer's field, but a great lawyer does sufficient reading or attends appropriate seminars to have a solid base of knowledge and awareness of current trends in the law. A great trial lawyer can handle cases in almost any field of substantive law but understands the need to become educated early enough in the litigation process so that case selection and critical decisions are made from a firm knowledge base.

2. A great trial lawyer has a solid knowledge of the law of evidence.

You have to know the facts. You have to know the substantive law. But mere knowledge of facts and the law does not do your client much good. You have to know how to get those facts before a fact-finder. 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 civil case law does not do you much good; there are relatively few civil cases that discuss evidence issues. (Criminal law is another matter.)

Nevertheless, great trial lawyers anticipate evidence issues and know how they are going to get facts and documents into the record. Great trial lawyers critically examine the potential proof of their opponents and look for ways to encourage the trial judge to force opponents to meet the evidentiary requirements necessary to get potentially damaging proof before the fact-finder.

That being said, great trial lawyers stipulate matters that are not reasonably in dispute and do not force their adversaries to jump through unnecessary hoops to prove what can be readily proven with the expenditure of time and money. Of course, great trial lawyers may not accommodate another lawyer in this regard if the lawyer has not extended a similar courtesy or has not made the request in a timely manner.

A great trial lawyer thinks about motions in limine and makes judgment calls about which issues to raise before trial and which to raise at trial.

Great trial lawyers use objections with care at trial. They understand how to make a record to persuade the judge to rule in their favor and also how to create a record for an appeal.

Great trial lawyers understand the appellate standard of review of evidentiary issues and act accordingly when advising their clients on the appellate process and when preparing issues and briefs for appellate review.

3. A great trial lawyer has a solid knowledge of the law of civil procedure.

The adoption and expansion of the discovery section in the modern-day rules of civil procedure was intended to reduce the number of trials by providing a mechanism for the flow of information between parties to litigation. The idea was that if one party to a dispute learned the opposing party's view of the facts and law, more cases would be dismissed without the expense of trial.

It worked. The "vanishing civil jury trial" is now a reality. Approximately 98 percent of all cases are resolved before trial, but even the cases that go to trial are subject to the rules of civil procedure. A failure to know the rules can result in a dismissal of your case, a restriction in the evidence you present, and other things one would just as soon avoid.

So, truly great trial lawyers learn the rules and use them both as a sword and a shield. For example, a great trial lawyer understands how to draft an affidavit in support of or in opposition to a motion for summary judgment. He or she knows how and when to ask a court to grant additional discovery before ruling on such a motion. A great trial lawyer knows the interplay between Rule 59 and appellate court review of the case.

These lawyers reasonably accommodate other lawyers, unless those lawyers have proven themselves unworthy of such accommodation or the accommodation will hurt a client or a client's case.

Great trial lawyers understand that the rules change and keep up with those changes. Great trial lawyers understand that every judge has "local rules," not all of which are written down. The lawyer learns the written rules and makes a reasonable effort to learn the unwritten rules.

The rules aren't sexy. No one dreams about arguing a motion to amend. But the fact of the matter is that the rules of civil procedure (and evidence) represent the rules of the litigation and those who don't know them are operating at a clear deficit, regardless of their advocacy skills.

4. 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 ding of computer tells us that another e-mail has arrived. Each piece of mail brings another task and another deadline. Each fax brings bad news, especially those faxes that arrive after the office has closed for the day.

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 timetable. 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.

Great trial lawyers avoid this by taking time to think. They identify issues early and create an action plan to address those issues and reduce the likelihood of harm to their client's case. They delegate work to other competent persons to ensure it is done in a timely fashion. And they use the action plan to cause their opponents to react. In other words, great trial lawyers stay on the offense, whether they represent plaintiffs or defendants.

And how do great lawyers take time to think? They leave the office. Or they turn off their phone. They find some way to focus on each case for a long enough period of time to identify issues and figure out how they can be addressed. And they do that often enough in each case to stay at least one step ahead of their opponent at all times, even if their opponent is a great trial lawyer.

5. A great trial lawyer maintains a reasonable caseload.

Many lawyers argue that they don't have time to think. I suggest that there are only four possible reasons why a lawyer doesn't have time to think. First, a lawyer who doesn't have time to think is not working hard enough. Second, such a lawyer has too much work. Third, it is possible the lawyer with this complaint 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 may be lazy.

My discussions with thousands of lawyers from around the country lead me to believe that (a) most lawyers are working plenty of hours (and many are probably working too many hours); (b) most lawyers have too much work (maybe not the work they want, but work they agreed to undertake); (c) the level of efficiency varies significantly; and (d) there are undoubtedly lawyers who are lazy. We won't spend any time discussing lazy lawyers " they will never be great trial lawyers. The other options require further discussion.

It is natural for a lawyer to have more work than he or she should ideally have. We all fear the lack of work, and each of us wonders where the next case will come from. Therefore, we tend to gather as many cases as we can to have the comfort of a full file cabinet (or six).

But great trial lawyers recognize that they can handle only a certain number of cases at one time. Keeping up with the substantive law and the law of evidence and procedure takes time. Taking the time to develop a strategy for the case and implementing the strategy take time. Throw in family, social and other obligations, and time seems to evaporate.

So what is a reasonable case load? It depends on the type of cases the lawyer is handling and the support personnel utilized. Let me use medical malpractice cases for the plaintiff as an example. (I use medical malpractice cases as an example because I worked on my first medical malpractice case as a summer clerk in 1980 and have had these cases as a part of my caseload for the last 27 years.) If your court system will permit those cases to be tried in 18 to 24 months, you do your own legal writing, and you have no support staff other than a secretary, I believe it would be extremely difficult to effectively handle more than eight of those cases (particularly if they involve different medical disciplines) at a time. It would be virtually impossible to actually try each one of those cases in that time frame and keep opening cases and working on cases to keep your caseload at eight.

On the other hand, if you have the right support staff, you can try a two- or three-day intersection wreck case every Monday of every week. I know of lawyers, great trial lawyers, who have a system in place where other professionals do everything in the case except try it. These lawyers have a reasonable basis for the expectation that the case has been properly prepared. They get the data they need for trial in a systemized format and can prepare quickly. They have to spend minimal time on the law because they have a narrow practice area and the evidentiary issues are the same in almost every case. They can maintain a much larger caseload because they are able to leverage their trial skills through qualified support staff on substantially similar cases.

So, the answer to the question of what is a reasonable caseload depends on the circumstances. Indeed, one case may be too many, and 50 cases may not be enough. Great trial lawyers identify the type of practice that works for them, and then create a structure around them that supports that practice.

The bottom line: great lawyers maintain a reasonable caseload. They either restrict the number of cases they take, limit the breadth of their practice areas so as to take more cases but achieve economies of scale, systemize their practice to become more efficient, employ more personnel (or acquire the talent through outsourcing) to leverage the great trial lawyer's talent, or employ a combination of the foregoing. In other words, they find some way of delivering high quality, timely service that works for them " and for their clients.

6. A great trial lawyer does not 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.
Admittedly, sometimes cheating can help you win. A weak trial judge won't call you down or impose sanctions. The victim of the improper conduct does not discover it or discovers it too late. And when a cheater starts cheating and isn't punished for it, the cheater keeps doing it, in part because it has worked for the cheater in the past and in part because the cheater is afraid that he or she will lose if he does not cheat. The cheater can't stand to lose, or he would not have cheated in the first place.

There are four problems with cheating. First, it is wrong. Second, word gets out about cheaters and it impacts their reputation forever. Third, at some point in a cheater's career they will get caught. Red-handed. And someone is going to make them pay. Big. Finally, I work under the assumption that late at night, in the dark, the cheater faces the fact that he or she has cheated and won. And my guess, indeed my hope, is that the cheater wonders whether they would have won if they had not cheated. In my mind that is almost punishment enough.

Great trial lawyers don't cheat. They have a strong desire to win, but would rather lose than cheat. They know that becoming a great trial lawyer is about more than just winning " it is about winning with honor.

Each of us knows otherwise great trial lawyers with an asterisk behind their name. Like the home-run hitter who uses steroids, they are known to cheat. As a result, they are known for nothing else.

7. A great trial lawyer learns the facts.

A great trial lawyer understands that cases frequently turn on the facts and that a mastery of the facts is essential to identifying all appropriate legal claims and defenses and effectively presenting a case at trial.

A great trial lawyer knows that effective representation often requires leaving the comfort of one's office. Sometimes that means traveling to an intersection, visiting an operating room, or standing in a ditch along the interstate. It may mean going to the scene of a hotel rape or visiting the plant where your client's limb was amputated. It may require going to factory where the product was made or assembled and talking with the men and women who are involved in the physical creation of the product. It means taking the time to learn.

Great trial lawyers don't need to look at every piece of paper in a commercial case " that task can be delegated to other competent people. But great trial lawyers help develop appropriate screening mechanisms to identify key documents and then do the work necessary to know the key documents inside out.

In summary, great trial lawyers understand that the devil in is the details. Great trial lawyers know that all of the facts in any case will not be presented at trial, but great trial lawyers learn the facts so that they can effectively determine which facts will be presented at trial.

8. A great trial lawyer understands 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, they confront 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.

Great trial lawyers first think about whether a person or entity should be deposed. What is to be achieved by the deposition? Is there a tactical advantage to not taking the deposition? What other discovery should be done before the deposition? Should the deposition be videoed?

The great trial lawyer prepares for a deposition. He or she marshals the known facts before the deposition, and then determines what facts need to be confirmed or developed from each deponent. Those decisions are made after examining the case thoroughly, anticipating potential factual issues and legal theories that will be advanced by the opponent. Questions are asked with a clear goal in mind, using words chosen with the ultimate fact-finder in mind. One attempts to close and seal possible defenses or claims, including those that have not been publicly raised.

A great trial lawyer may choose to impeach a deponent at the deposition, save the impeaching material for trial, or use it as leverage for settlement. This is a judgment call.

Great trial lawyers treat deponents with respect, whether they are janitors or CEOs. They do not demean or belittle the less-educated or less-intelligent deponent. That being said, great trial lawyers expect that appropriate questions will be answered and insist that a witness not evade his or her obligation to provided truthful testimony.

Great trial lawyers understand that creating a record at a deposition is vitally important and make the effort to leave the deposition with a transcript/ video that accurately reflects the events of the deposition. This attention to detail includes the appropriate introduction of exhibits and the use of them during the deposition.

Finally, great trial lawyers understand that Rule 32 of the Federal Rules of Civil Procedure and Rule 804 of the Federal Rules of Evidence (and analogous state rules) give rise to a myriad of circumstances in which a so-called discovery deposition can be used at trial and plan accordingly. Indeed, the knowledge of that rule is a factor taken into consideration in determining whether to take the deposition in the first place.

9. A great trial lawyer has the ability to pull the trigger.

Trial lawyers are required to make a large number of decisions. Some are minor (e.g., should 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 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.

Most importantly, great trial lawyers know that an erroneous decision is usually not as bad as the refusal to make any decision at all. Too many lawyers become frozen when making a tough decision, and the resulting delay all too often causes a different kind of harm. Great trial lawyers avoid mental paralysis.

This does not mean that that great trial lawyers make uninformed judgments. They gather information and then make a decision. If during the decision-making process it becomes apparent that more information is required, the great trial lawyer identifies what is needed, decides how to obtain that information, gathers the information, and then makes the decision.

Sometimes there is no time to gather information. Or there is limited time. In these circumstances the great trial lawyer takes the known information and makes a decision. And then lives with it.

10. A great trial lawyer has 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.) 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 an 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.
At one level, this means structuring your personal and profession life in such a way so as to fulfill your obligations to yourself, your family, your law practice and your community in a way that enhances efficiency and minimizes stress. Indeed, it begins by taking a personal inventory from time to time to determine whether you are on the track you want to be on and, if not, developing a plan for structuring your life to reflect your values and priorities. This is a non-delegable duty.

At the professional level, however, a great trial lawyer may seek the help of another lawyer, a paralegal, or a secretary to keep the plates spinning. Indeed, many great trial lawyers become very close to and dependent on someone to make sure that no plates hit the stage.

In a given case, great trial lawyers figure out a way to avoid repeating past work. Memos replace memories. Document productions are bates-stamped so that one can prove what was sent when and to provide for a ready means of reference in depositions, memos, etc. Documents produced by an opponent are organized in a manner appropriate for the case. Files are structured so that a pleading or piece of correspondence can be found at 5:00 on Saturday afternoon when everyone else has gone home. Deadlines are created and monitored. Planning sessions result in to-do lists with stated deadlines, appropriate delegation, and a mechanism for follow-up.

Great trial lawyers organize (or allow another to organize) for trial. A decision is made about exhibits, and they are found or prepared and disclosed in a timely fashion. A plan is developed to get each exhibit admitted into evidence. "Friendly" witnesses are identified, prepared, disclosed in a timely fashion, and then prepared for trial. "Hostile" witnesses are identified, disclosed in a timely fashion, and an examination prepared (including impeachment material). Evidentiary issues are identified and appropriate research done. The appropriate substantive law is captured, brought to the attention of the trial judge in an appropriate fashion, and used to create proposed jury instructions. All of this is matched against a list of the evidence necessary to prove the causes of action in the complaint (or the defenses to it, if you represent the defendant), and it is double-checked.
Logistics are considered. When do the out-of-town witnesses need to be present? Where should they stay? What is the back-up plan? What items do we need to have in the courtroom each day? Do we need technical support? Where are the electric plugs in the courtroom? Do we need a back-up computer? Is there a projector in the courtroom? Who is the person in charge of it? What time will court start each day? At what time will the court break for the day? Are there other matters on the docket that will interfere with getting a full trial day in every day? And on and on.

In summary, great trial lawyers know that organization frees the mind to do what great trial lawyers do: prepare and try a lawsuit to the best of their ability.

11. A great trial lawyer understands the need to be true to oneself.

Every great trial lawyer knows that great trial lawyers have different styles and personalities. Great trial lawyers also come in all shapes and sizes. Race is immaterial. Gender is immaterial. Age is material, but only because some level of experience is required to become a great trial lawyer.

Knowing this, great trial lawyers are themselves. They are comfortable in their own skin. They use their talents. They identify their weaknesses and attempt to minimize them through self-improvement or delegation.

Great trial lawyers watch and learn from other lawyers and others with relevant knowledge and experience, but they know they can't be someone other than themselves. They learn about a new technique at a seminar or in a book, hearing, or trial and determine if it works for them. If not, they let it go.

12. A great trial lawyer has 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, experience and considered judgment. Great trial lawyers tell the client the truth " whether the client wants to hear it or not.

That doesn't mean that a great trial lawyer will use the verbal equivalent of a 2 by 4 to bring the truth home (although sometimes that is necessary). Rather, a great trial lawyer will offer opinions on the case consistent with his or her knowledge of the facts and the law at the time the inquiry is made.

Let me provide an example: A great trial lawyer will rarely tell a client whether they will win or lose a case at an initial meeting, much less put a dollar value on the resolution of the case. First, a client may not know all the facts, and there is almost certainly another side of the story. Second, the value of almost any case changes during the course of the litigation. A plaintiff who does a poor job at her deposition hurts her case. A defendant who does an excellent job helps his position. An expert who is caught in a lie hurts the party who employs him. And so on. The point is that things change, those changes can impact the case, and a great trial lawyer is comfortable explaining that to clients.

This is not to say that great trial lawyers are wishy-washy. It is just that great trial lawyers know that things are not necessarily what they are represented to be. Some may call these lawyers "cynical"; I prefer the word "experienced." Thus, great trial lawyers help a client understand how things can change in litigation, and promise to give a more definite opinion as the level of knowledge of the case increases. By doing so, a great trial lawyer manages expectations.

Good clients, the kind of folks a great lawyer wants to represent, understand that. Bad clients do not. Bad clients want guarantees before factual discovery. And, when things turn out differently than represented in the initial interview, bad clients are the first to remind you of the "promises" made in that interview. Great trial lawyers know when a client is trying to box them in, and refuse to allow it to occur.

As more information is learned in a given case, great trial lawyers also tell their client the truth. They give an opinion about whether to make, accept or reject a settlement proposal, or indicate that the proposal is so within the range of reason to make it a toss-up. They give these honest opinions whether the client likes the advice or not, and explain the basis for the opinion.

A great trial lawyer will not hesitate to tell a client that the client is making a mistake by not taking a recommendation of the lawyer, but then will follow the client's wishes so long as the course of action is legal and ethical. In other words, great trial lawyers understand that client is the boss, and unless the client is demanding illegal or unethical action or the relationship between lawyer and client has become so impaired that the lawyer cannot adequately represent the client, the lawyer yields to the client's wishes.

13. A great trial lawyer has the ability and willingness to undertake (and share with the client) a cost-benefit analysis throughout the litigation.

A case evolves during the litigation process. For example, as mentioned earlier, 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.

Great trial lawyers know that despite their best efforts there will be events that occur that hurt their client's position. And they do their best " within the bounds of law and ethics " to cause or contribute to cause events that will adversely impact the case of their opponent.

Thus, great trial lawyers know that it is in the client's best interest to evaluate the case at various points in the litigation process. Events may occur that provoke a higher settlement proposal " or the withdrawal of an outstanding offer. A mediation may need to be scheduled " or postponed. More discovery may be necessary " or planned discovery canceled. Great trial lawyers do not practice law on autopilot.

Great trial lawyers also take into account the costs of litigation in evaluating cases " both at the time of employment and throughout the litigation. Litigation is expensive. Clients need to have an idea about the costs of litigation to make informed decisions about settlement and trial. Great trial lawyers do not fear giving clients accurate information about litigation costs, and do not fear identifying the variables that will affect costs. They do not deliberately understate potential costs to secure representation.

Great trial lawyers frequently represent clients who take positions in litigation as a matter of principle. Clients have a right to draw a line in the sand and pay to litigate when, from an accounting standpoint, it makes no sense to do so. These lawyers understand that the client may have other interests to protect (e.g., the need to send a message to future litigants that settlements will not be readily forthcoming or the need to protect proprietary information) that would cause them to spend more money prosecuting/defending the case than it would cost to resolve it.

That being said, great trial lawyers help such clients understand the costs attendant to acting on "principle." Thus, these lawyers carefully help the client analyze the "principle" at issue and help examine the factors that will assist the client in evaluating how much the client is willing to spend to protect the "principle."

None of this should be read as suggesting that great lawyers encourage a client to abandon positions based on "principle." Far from it. Rather, these lawyers know that a client's early declaration of "I don't care how much it costs, this is a matter of principle" often changes after the legal bills begin to flow into the accounting office. They also know that, despite frequent initial resistance from the client, these discussions actually solidify the relationship between lawyer and client, because the client understands (or comes to understand) that the lawyer is attempting to look out for the client's long-term interest.

Great trial lawyers do not initiate such discussions for the first time late in the litigation process. It is all too common for lawyers to yield silently to the client's "litigate at all costs" mind-set at the beginning of the litigation and then begrudgingly begin to inject some level of reality into the discussions only after the legal bills have piled up. Such lawyers are working from a position of fear, greed, lack of experience, or a combination thereof.

Finally, great trial lawyers also help a client understand the nonfinancial costs of litigation. Plaintiffs in wrongful death litigation need to know that the healing process will not truly begin until the litigation is over. Corporate and business clients need to understand that litigation will consume some amount of the productivity of the company and may impact the company's reputation. Acknowledgment of these facts does not mean that a claim should not be pursued or defended. Rather, great trial lawyers know that clients need to understand these matters so that they can make an informed decision about whether to engage in and continue with litigation.

14. A great trial lawyer has 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 a 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.
Some great trial lawyers can take any position on behalf of any client at any time. They are in it for the competition or the money or both, and it makes no difference who they represent or what position they take. They are hired guns. I am not suggesting that these lawyers are dishonest " if they were, they would not be great trial lawyers. I am saying that these lawyers do not necessarily care about the particular client or the cause when they elect to take on another case.

Other great trial lawyers tend to pick a side. These lawyers defend doctors or sue them in medical negligence litigation. They represent shareholders or defend boards of directors in shareholder litigation. They represent employees or employers in discrimination cases. These lawyers feel more comfortable taking a side (chosen deliberately, by gravity, or a combination thereof) and sticking with it.

Is there a link between continued passion for the work and picking a side? Perhaps. Some will argue that continued passion for the job can only come from a belief in something other than the competition and the money. Others will argue that the passion for the profession comes from a place different than what side of the "v" you are on or the client's cause. And yet others will say that it is the cause that drives the passion, but the cause in a particular case, not the cause in general.

What is the answer? The answer can only come from the individual lawyer who has become a great trial lawyer or who is working to attain that status. What is it that motivates her to do her best, every day? What is it that makes him go the extra mile in every case? In short, how does the lawyer keep the "fire in the belly" burning? And, more importantly, how does the fire stay hot over an entire career?

15. A great trial lawyer has an understanding of the human condition and what it takes to motivate jurors to action.


You cannot try jury cases if you do not understand how people think. I am not talking about how other members of the country club think. Nor am I talking about the thought processes or values of the people you see at every high society charity event.
No, I am 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 charity event. 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 am talking about the way that jurors think.

It is hard to keep up with how real people think. The fact of the matter is that advanced education tends to divorce one from most people in our society. Even worse, a law school education separates you from the way ordinary people process information and the language you learn is not juror-friendly. Then, the money earned practicing law impacts your lifestyle and thus the people around you. You move up a neighborhood or two, tend to surround yourself with other people who have similar lifestyles, and all of a sudden you are surrounded by those with wealth and privilege. Those folks are usually not on juries, and the way they think is simply unlike the way that real people think.

Great trial lawyers stay in touch with how real people think and thus how they can be motivated to action. They talk to the guy who fixes their car, the woman who cuts their hair, and their server at the barbecue restaurant. They listen to the non-lawyers in their office and encourage their candid opinions about cases. They use focus groups as appropriate to test themes and presentations of evidence. They read about how to understand people and motivate them. They use the language of the jury, not the language of their Secured Transactions professor. They use demonstrative aids designed to educate, not just to wow, the jury.

In summary, great trial lawyers know that the advanced education and privilege they have experienced is a handicap before a jury. They use their best efforts to overcome that handicap by interacting with and endeavoring to understand those who will be jurors.

16. A great trial lawyer has an appreciation for the discretion vested in the trial judge.


Trial judges are human. Each of them has 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 others tend to 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 understand and 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 wave a hand and say "move 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.

Great trial lawyers also understand that a judge whose life experiences cause the judge to favor the lawyer's position can occasionally go too far. It is easy for a lawyer to be swept up in this activity, to experience the gratification of each favorable ruling, and thus to aggressively seek to admit questionable evidence or keep out evidence from an adversary that should be admitted. Great trial lawyers tread carefully in this situation, knowing what rulings are discretionary and what rulings may be reversible error. They pull back when they are getting too much help from a judge, in an effort to protect the record in the event of an appeal.

In summary, great trial lawyers understand that they need to lose the motions they should lose, endeavor to win the motions they should win, and fight to win as many discretionary rulings as they can. They can do so only if they understand (a) who the trial judge is; (b) the law on the particular point; (c) the relevant facts; and (d) the law of the discretion afforded the trial judge.

17. A great trial lawyer has 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 those plates spinning when the lawyer is otherwise occupied.

But a strong argument can be made that even more help is needed. The attributes identified in this series are many and diverse, and require a substantial amount of time and energy. It is virtually impossible to be a great trial lawyer without the assistance of at least one other competent lawyer and/or paralegal. More may be required, depending on the caseload and practice area.

Many tasks mentioned in this series can be delegated to another competent person. It is not necessary for a great trial lawyer to draft complaints, answers or discovery. A great trial lawyer need not take depositions. Indeed, a friend of mine who lost his life at an early age to brain cancer but achieved the status of a great trial lawyer before his death called witnesses to the stand he never met. How? He had an experienced investigator (a former state trooper who was bright, diligent and personable) prepare witnesses for trial. They worked together for so long that the lawyer was comfortable calling a witness on direct who was fully prepared by someone else. I know it worked for him " we tried a case together and I saw it work.

Thus, a great trial lawyer may choose to surround himself or herself with people who share his or her dedication and values, and to work with them to prepare and try cases. The trick is finding the right people, training them, and then being willing to let go of the work. Each of those things is a challenge, especially the last one. It is hard to let go of the work, especially the work you enjoy. I recall a discussion with a friend from Kansas City, asking him how he could allow others in his office to take depositions for him in his significant cases. I said, "Aren't you worried that they will makes mistakes?" He said, "When was the last time you took a deposition and didn't make a mistake? Of course they will make mistakes. And the mistakes they make may be different than the ones you make. But with proper preparation you can overcome their mistakes, just like you can overcome your own."
Once again, great trial lawyers figure out what level of delegation works for them. Most learn that they deliver the best service to their clients " and improve the quality of their own life " if they delegate work to others.

18. A great trial lawyer is blessed with 'luck.'


What is the role of luck in the development of a great trial lawyer? Well, professionally it often begins with having the right mentor early in one's career. Finding the right mentor is largely, but not completely, luck, because most students come out of law school (a) not understanding the significance of having a good mentor, and (b) not having the skills to identify who would be a good mentor. Worse yet, those students who do understand the significance of having a good mentor may have difficulty finding one with whom they can work.

Luck is an important factor in getting the right cases that help the lawyer develop the appropriate skills. This is another benefit of having a good mentor " one gets to work on cases that lend themselves to advanced preparation and that increase the likelihood that a great trial lawyer will be on the other side. A strong opponent sharpens skills, and the more strong opponents you are able to face, the stronger lawyer you will become (assuming you attempt to meet the challenge).

Getting the right cases also helps you get results that build your reputation. The reputation of being a great trial lawyer is not the same as actually being a great trial lawyer, but a solid reputation helps one get the work (and face the opponents) that advances the developments of habits and skills that allow one to become a great trial lawyer.

Like it or not, getting "big" cases makes a difference, and there is some element of luck involved in that. I believe in the old joke, "How do you get a $1 million verdict? Mess up a $4 million case," but the fact of the matter is, people pay more attention to larger results than small ones even if, from an objective basis, the result in the "small" case reflects better lawyering.

There is also the "luck" involved in drawing the right adverse lawyer, the right judge, the right venue, the right jury pool, etc., in any given case. There is the "luck" of facing a lying expert whom you can destroy in a deposition or on the witness stand, of finding a "smoking gun," or of having a whistleblower come forward. To be sure, one often "makes luck" occur in these matters and must have the dedication and skill to recognize and capitalize on such matters when they occur, but there is an inescapable element of luck in each.

One needs "luck" to avoid health problems that can derail an otherwise promising career; indeed, such problems with a spouse, child or parent can make it difficult, perhaps impossible, to do what is necessary to become a great trial lawyer. Alcohol can destroy a career, and there are many lawyers who look back over the course of their lives and will admit that there was some element of "luck" in avoiding many of the problems that arise from the excessive use of alcohol. A single ethical lapse can also destroy a career, and one may have been "lucky" to have committed one and not been caught.

The list is endless but enough time has been spent on it. The bottom line is that most great trial lawyers will admit that good luck has played some role in their development.

However, the words of Thomas Jefferson ring true to this writer: "I'm a great believer in luck, and I find the harder I work, the more I have of it." Has Warren Buffet been lucky? For five solid decades? How about Tiger Woods, with 62 PGA Tour wins at the age of 32? Are Larry Page and Sergey Brin simply lucky to have developed Google " and a decade later have it worth billions of dollars? No, Lady Luck may give risk to occasional opportunities, or help one avoid misfortune. But, over time, those that are truly successful in whatever field tend to make their own luck, and capitalize on it.

19. A great trial lawyer knows that he or she is only as good as the 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 effects.
And sometimes it is true. Accomplished lawyers occasionally intimidate their adversaries. They occasionally even intimidate judges. They get their way, whether they are entitled to it or not.

But great trial lawyers do not take such things for granted. Great trial lawyers know, in the words of a friend from New Orleans, that "the higher a monkey climbs a flag pole, the more of his [posterior] shows." Great trial lawyers know that other lawyers want to beat them and that most trial judges are going to call the ballgame the same regardless of who the competitors are. Younger lawyers working their way up to great trial lawyer status present the greatest threat " they want to be able to say they beat a person recognized as a great trial lawyer.

Great trial lawyers also know that great reputations are hard to get and easy to lose. (They also know that bad reputations are easy to get and hard to lose.) They know that they might be able to cut a corner from time to time and still come out the victor, but word quickly spreads that they are doing so. That talk fuels the fire in their adversaries, increasing the likelihood that someone will work even harder to beat them in a case.

As suggested above, all this is not to say that great trial lawyers must win or that great trial lawyers never lose. Nor do I mean that a lawyer who loses has done a poor job. That is not the way it works. For example, great trial lawyers who do defense work do not get to pick their cases and therefore lose the ability to screen out cases where the risk of loss is high. Indeed, one "reward" for being a great insurance defense lawyer is that you are asked to take on even more difficult cases involving a potential for an even greater damage award against your client. Looking only at win/loss records is a simple person's way of determining who is a great trial lawyer.

In summary, a great trial lawyer is expected to win, and the pressure to win honorably only increases as time passes and experience grows. Thus, great trial lawyers do not rest on past successes but remember and duplicate the habits and discipline that got them to great trial lawyer status in the first place. And, regardless of the outcome of the case, great trial lawyers analyze each trial and the preparation for it with a critical eye toward self-improvement.

Closing Thoughts

As I said at the outset of this article, a great trial lawyer need not have all of the attributes set forth in this article. 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 professional 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 article.

I am forced to admit that writing this article began with one purpose and ended serving another. As I said earlier, I originally hoped to expand upon the comments I used in a speech for the Tennessee Bar Association. Putting pen to paper (keystroke to screen?) quickly became an attempt to articulate for myself what I must do to become the lawyer I want to be. I can only hope that the thoughts expressed herein have been as helpful to you as they have been to me.

These writings capture and applaud what I have observed in lawyers whom I truly admire. It includes observations I made while following my father around courtrooms in Central Wisconsin four decades ago; insights I gained in law school during an unforgettable speech by Ramsey Clark and discussions with a number of extremely competent professors, and my experiences during my 27 years at the bar. The work of my mentor, John T. Conners Jr., put me in the position to learn much of what I now know.

JOHN A. DAY JOHN A. DAY is a trial lawyer in Brentwood, Tenn. He is the author of A Handbook for Tennessee Tort Lawyers 2009 and the editor of a monthly newsletter on the law of torts, civil procedure, evidence and trial called the Tennessee Trial Law Report.