Wisdom for New Solo Trial Lawyers
Strive to Be Good, Not Famous. Don't strive to get famous, keep a low profile. Be moral and ethical. Follow your bar’s code of ethics. If you're good, clients will come to you. Client referrals represented 20% of my clientele, and after retirement, they are still calling.
Develop a thick skin. To survive as a solo trial lawyer you need to be hungry, hunger creates incentive. You also need to develop a thick skin. There will be those who will strive to discredit you in an effort to win or hold you back. Don't let them distract you. They're hills on the road to success which you can surmount or circumvent.
Don't curry favor with any judge. I have seen lawyers currying favor with a judge; it was despicable. Don't be a pet. If you crave being liked, it will be visible. This arena is for warriors, not pals. Watch your backside, there are vicious players.
Trial lawyering is like football. Earning a living as a courtroom lawyer is like playing smart football. Don't count on 60-yard passes or 100-yard kick returns to get touchdowns. Play 4 yards at a time, get your first-downs, convert on fourth down or punt when it is the only reasonable option. In settling, adhere to the fable: one bird in the hand is better than two in the bush. Or, more to the point, a bad settlement is better than a good trial any day.
You must pay to play. Pay estimated taxes monthly instead of quarterly. Paying monthly is mentally easier and more certain to happen. Don't let tax debt weigh you down. Wait three months to pay, and you will have found a reason to spend what you should have impounded for income tax. The pain comes at the end of the year when you have to use next year’s revenue to pay for last year’s taxes. When you overpay, you’ll get a refund in June. Retain a CPA for preparing income tax returns.
Pay off debt. Debt will weigh you down emotionally, but, it is a necessary evil. It got me through lean times. Pay it off as soon as you can and try not take on more debt.
Build for retirement. When you’re 27, retirement will seem too far away to consider. It is not. Read my lips: put away as much money as you can for retirement. The individual 401K is the way to go. Live frugally, there is no shame in that. With each “paycheck” I got, no matter how small, I funded my retirement plan. At the end of the fourth quarter of my career, I had a retirement plan which would enable me to live out the rest of my days financially comfortably.
Shield yourself from liability. You cannot shield yourself from liability in relation to your clients, and so you carry malpractice insurance. By operating as an LLC or P.C. you can shield yourself regarding everyone else including other lawyers, vendors, etc.
The purpose of voir dire. They say that voir dire, i.e., jury selection, is about determining whether a jury venire may judge the evidence in your case fairly and objectively. That is true. But in determining who can be a fair juror, use voir dire to argue your case by asking potential jurors about their beliefs, attitudes and life experiences in relation to the evidence of your case. That will be the only chance you will have to dialogue with the jurors.
Irving Younger's Ten Commandments of Cross-Examination, Revised Edition. I have revised Professor Younger’s Ten Commandments as follows:
1. Be brief. Revision: Don’t be brief, establish rapport, develop and exalt a hostile witness, then flip the witness.
2. Short questions, plain words. Revision: No more than 10 words per question.
3. Always ask leading questions. Revision: OK to ask open-ended question if it can’t hurt you.
4. Don't ask a question to which you don’t know the answer. OK to ask any question for which the unknown answer cannot hurt you.
5. Listen to the witness' answers. No Revision.
6. Don't quarrel with the witness. Revision: OK to quarrel so long as the witness discredits only himself by quarreling
7. Don't allow the witness to repeat his direct testimony. Revision: You can try to stop witness’ repetition, but most judges will allow the repetition.
8. Don't permit the witness to explain his answers. Revision: OK to permit if necessary so long as it does not hurt you or helps you. Most judges will permit, there is nothing you can do.
9. Don't ask the "one question too many." No revision.
10. Save the salient point of your cross for closing. No revision.
Communication. Communication is a lawyer’s stock in trade. Do not resort to vague terms such as: a number of, many, few, about, huge, small, more or less, almost, approximately, nearly, sooner rather than later, pretty as in pretty fast, pretty long, very, very very, far, near, several, etc. Don’t ever file a brief, complaint or other document which you authored without printing and editing at least three times. Strive to hold letters to clients, lawyers and judges to one page. For more, read “The Elements of Style” by Strunk & White.
It’s Anybody’s Ball Game. In the 1970s, I was nuts about National League baseball. I would listen or watch all 162 of the Dodgers’ games each season. Joe Garagiola announced the Saturday Game of the Week on NBC. He was the best. So, I will end with an excerpt from chapter 12 of Joe’s "It's Anybody's Ball Game" which describes my attitude:
"You start with only a dream and have absolutely no idea where you'll end up. Just about the time you get comfortable with your dream, and you think you know where the road is taking you, the road divides, and you have to make a decision. Which way do you go? One path is well lit and continues in the comfort zone. The other one is dark, filled with doubts. Do you take a chance?
Ask yourself. If you're not happy with what you're doing, then you're not in your right place. There is a right place for everyone, and sometimes you have to take a risk to discover it. You have to risk the potholes, the bad road, whatever it takes to find the place you want to be. Take the chance—just be prepared to also take the consequences.
You've probably heard "You can't steal second with one foot on first," and it's true. You can't be afraid to fail either. You're going to get thrown out at second once in a while, but you have to keep coming back, keep trying. If you never get thrown out, you'll never learn. There is nothing wrong with being wrong. Experience is just mistakes you won't make again. Just dream your dream and do everything you can to live it. Do it and don't care what anyone else thinks. If you are lucky enough to live your dream, it becomes a favorite memory."
Develop a thick skin. To survive as a solo trial lawyer you need to be hungry, hunger creates incentive. You also need to develop a thick skin. There will be those who will strive to discredit you in an effort to win or hold you back. Don't let them distract you. They're hills on the road to success which you can surmount or circumvent.
Don't curry favor with any judge. I have seen lawyers currying favor with a judge; it was despicable. Don't be a pet. If you crave being liked, it will be visible. This arena is for warriors, not pals. Watch your backside, there are vicious players.
Trial lawyering is like football. Earning a living as a courtroom lawyer is like playing smart football. Don't count on 60-yard passes or 100-yard kick returns to get touchdowns. Play 4 yards at a time, get your first-downs, convert on fourth down or punt when it is the only reasonable option. In settling, adhere to the fable: one bird in the hand is better than two in the bush. Or, more to the point, a bad settlement is better than a good trial any day.
You must pay to play. Pay estimated taxes monthly instead of quarterly. Paying monthly is mentally easier and more certain to happen. Don't let tax debt weigh you down. Wait three months to pay, and you will have found a reason to spend what you should have impounded for income tax. The pain comes at the end of the year when you have to use next year’s revenue to pay for last year’s taxes. When you overpay, you’ll get a refund in June. Retain a CPA for preparing income tax returns.
Pay off debt. Debt will weigh you down emotionally, but, it is a necessary evil. It got me through lean times. Pay it off as soon as you can and try not take on more debt.
Build for retirement. When you’re 27, retirement will seem too far away to consider. It is not. Read my lips: put away as much money as you can for retirement. The individual 401K is the way to go. Live frugally, there is no shame in that. With each “paycheck” I got, no matter how small, I funded my retirement plan. At the end of the fourth quarter of my career, I had a retirement plan which would enable me to live out the rest of my days financially comfortably.
Shield yourself from liability. You cannot shield yourself from liability in relation to your clients, and so you carry malpractice insurance. By operating as an LLC or P.C. you can shield yourself regarding everyone else including other lawyers, vendors, etc.
The purpose of voir dire. They say that voir dire, i.e., jury selection, is about determining whether a jury venire may judge the evidence in your case fairly and objectively. That is true. But in determining who can be a fair juror, use voir dire to argue your case by asking potential jurors about their beliefs, attitudes and life experiences in relation to the evidence of your case. That will be the only chance you will have to dialogue with the jurors.
Irving Younger's Ten Commandments of Cross-Examination, Revised Edition. I have revised Professor Younger’s Ten Commandments as follows:
1. Be brief. Revision: Don’t be brief, establish rapport, develop and exalt a hostile witness, then flip the witness.
2. Short questions, plain words. Revision: No more than 10 words per question.
3. Always ask leading questions. Revision: OK to ask open-ended question if it can’t hurt you.
4. Don't ask a question to which you don’t know the answer. OK to ask any question for which the unknown answer cannot hurt you.
5. Listen to the witness' answers. No Revision.
6. Don't quarrel with the witness. Revision: OK to quarrel so long as the witness discredits only himself by quarreling
7. Don't allow the witness to repeat his direct testimony. Revision: You can try to stop witness’ repetition, but most judges will allow the repetition.
8. Don't permit the witness to explain his answers. Revision: OK to permit if necessary so long as it does not hurt you or helps you. Most judges will permit, there is nothing you can do.
9. Don't ask the "one question too many." No revision.
10. Save the salient point of your cross for closing. No revision.
Communication. Communication is a lawyer’s stock in trade. Do not resort to vague terms such as: a number of, many, few, about, huge, small, more or less, almost, approximately, nearly, sooner rather than later, pretty as in pretty fast, pretty long, very, very very, far, near, several, etc. Don’t ever file a brief, complaint or other document which you authored without printing and editing at least three times. Strive to hold letters to clients, lawyers and judges to one page. For more, read “The Elements of Style” by Strunk & White.
It’s Anybody’s Ball Game. In the 1970s, I was nuts about National League baseball. I would listen or watch all 162 of the Dodgers’ games each season. Joe Garagiola announced the Saturday Game of the Week on NBC. He was the best. So, I will end with an excerpt from chapter 12 of Joe’s "It's Anybody's Ball Game" which describes my attitude:
"You start with only a dream and have absolutely no idea where you'll end up. Just about the time you get comfortable with your dream, and you think you know where the road is taking you, the road divides, and you have to make a decision. Which way do you go? One path is well lit and continues in the comfort zone. The other one is dark, filled with doubts. Do you take a chance?
Ask yourself. If you're not happy with what you're doing, then you're not in your right place. There is a right place for everyone, and sometimes you have to take a risk to discover it. You have to risk the potholes, the bad road, whatever it takes to find the place you want to be. Take the chance—just be prepared to also take the consequences.
You've probably heard "You can't steal second with one foot on first," and it's true. You can't be afraid to fail either. You're going to get thrown out at second once in a while, but you have to keep coming back, keep trying. If you never get thrown out, you'll never learn. There is nothing wrong with being wrong. Experience is just mistakes you won't make again. Just dream your dream and do everything you can to live it. Do it and don't care what anyone else thinks. If you are lucky enough to live your dream, it becomes a favorite memory."