Oct 12, 2012 The invigorating life of successful trial lawyering includes panning for gold, no ego, and sometimes shoveling a lot of sh*t
"Don’t you know that litigation causes many lawyers heart attacks?", an experienced federal regulatory agency lawyer asked me when early on in law school I expressed an interest in a litigation career, including to fight for civil liberties. I suppose that heart attack risk might be higher for those averse to combat, but combat — the peaceful yet fierce kind — is still necessary in the fight for social justice, including in criminal defense, and I seek calmness in the eye of the storm, which requires constant combat.
The invigorating life of successful trial lawyering includes panning for gold, no ego, sometimes or often shoveling a lot of sh*t, dedication, passion, compassion, and preparation, preparation, and preparation.
Courtroom battle brings unique challenges to those seeking to manage time well, because trials can go at their own extended pace for long days and many days, and sometimes even for weeks and months. Winning at trial requires substantial preparation, focus, and spending the time needed on each part of the trial, which does not make for a forty-hour week. Not everyone is made for such a life; it suits me well.
Courts and judges often push the carrot of settlement before lawyers and their clients as an alternative to crowding their calendars with pretrial obligations, pretrial court dates, and trial date continuances (which further crowd the fewer than 250 annual court dates available to a lawyer); lawyers must prepare their clients to stand strong (and to have the needed funds) to prepare for and to proceed to trial rather than to accept an undesirable settlement.
While a lawyer is in the middle of jury trial battle with very few opportunities to be in touch with the outside world — particularly after making time for nutritious food and drink and time in the sun during the daily lunch breaks — faxes, phone calls, and mail keep coming in, and deadlines are approaching. Thank goodness to my seasoned staff for helping me with that and more. At the end of a long day in court, or at worst before the next long day in court, a trial lawyer must attend to the matters that have been accumulating at the office. Similarly, the trial judge presiding at a long trial has other matters to handle each day beyond the trial at hand.
The stories are legion of corporate law firm associates and many other lawyers easily putting in sixty to seventy-hour work days, and longer — excluding lunch and break times. Imagine the challenges to a trial lawyer’s time efficiency when on top of that s/he must constantly be in court, and on the road (particularly for extended out-of-town work matters) and away from the efficiency of being at his or her desk within feet of support staff. That is the lot of a trial lawyer’s life, and I welcome it.
Forrest Gump, even though a fictitious character fighting in the wrong war — succeeded as a soldier in Vietnam and thereafter in business not because he was smart (although he had to have had some types of smarts and instincts to survive and thrive), but because he was tenacious, focused, and in the movie he followed orders without question. In real life, successful people must think for themselves, but trial lawyers nevertheless must accept that they will at times receive injudicious orders from courts and judges, and will have the choice to follow those orders if unable to persuade the judges to change or stay them, or to get out of this type of work.
I mention Forrest Gump in part because a colleague recently pondered whether to file objections to the admission of certificates of blood alcohol analysis in Virginia drunk driving case where the arresting and breath testing officers are one and the same. I weighed in on how my filing such objections always and without exception once yielded particular gold with an acquittal even though the arresting officer and breath testing officer were present to give testimony. The time and effort to file such an objection is minimal; the risks of damaging fallout for not doing so are too high.
A lot of trial litigation preparation is about overcovering risk. It is better to prepare and file arguments that might find the needle in a haystack than not to, and it makes particularly little sense to wonder whether to prepare and file a court document that takes little time and expense to file and that might contribute to success. It is better to meet deadlines well in advance of those deadlines. It is better to issue a subpoena on a witness who is hard to reach rather than waiting first to reach the witness to determine whether a subpoena is necessary to secure the witness’s presence in court (and subpoenas are essential, lest the cooperative-sounding witness calls an hour before trial starts to say his or her boss will not allow the witness to come to court). Trial lawyers must daily read the appellate opinions from the jurisdictions where s/he practices.
Those with big egos, not willing to get their hands dirty and to shovel sh*t when needed, unwilling to change old habits and embrace new possibilities and better ways of doing things, and unwilling to brainstorm with their colleagues and others and to admit their weaknesses (and not just their strengths) need not apply to be successful and effective trial lawyers. This work is not about the lawyer, but about serving clients and fighting doggedly for victory. When the lawyer believes s/he is on the side of the angels — which is the overwhelming situation with me –it makes the trial lawyer all the more apt to succeed, persevere, and enjoy the fight.