Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.
Unless there is a vigorous objection, this is the first of a series of columns on trial practice. They will all be by me. In fact, we are already looking for authors qualified on the topic (read, willing to write).
Jimmy Buffet introduces one of his songs as a “love song from a different point of view.” This will be trial tactics from a different point of view, an attempt to cover ground not well trod. (The fact that the song is entitled “Why Don’t We Get Drunk and Screw” should not be held against the County Bar).
Any analysis should start with a baseline. In this case we should look at the core principals of effective trial work. They are, I believe:
- Creativity, and
Before you dismiss this assessment as too basic, stop and think of how many lawyers you know who don’t hit 2 of the 5 on a daily basis.
Each year I have at least one law student tell me that it is okay to assist the client in manufacturing a story that will help them to win. Too often we see practicing lawyers who follow that creed. We live in a country where “plausible deniability” and “spin” are considered art forms. Try to practice that way and you will kill your clients and kill your practice.
There is nothing, nothing, nothing more important to the success of your practice. The Justice Center and the Federal Building are very small towns. You get caught hedging even once and people will know. One way to think of credibility is as your duty to tomorrow’s client.
Credibility is also bound up with the concept of how you present your claims. We have all seen lawyers who make outrageous demands in an effort to bluster their way to victory. It is a very shortsighted strategy. Stake out the furthest reasonable position and hold it.
Integrity is close in concept to credibility, but the difference is operative. For this purpose, integrity means the willingness to do the work necessary to complete the task. No one is going to do you any favors, certainly not someone in a more powerful position than you. The only way that you will succeed over time is to do the work on each case. That means digging in and reading the statutes and rules before all else. As an aside, if you want to understand a new concept, look at the jury instructions.
We must stop considering ourselves as warriors and start to look at ourselves as teachers. It is the job of the trial lawyer to educate: first ourselves, then our clients, then our opponents, then the judge, and finally the jury. Do not expect anyone to understand your case. Take the time to explain. Pretrials are for educating the judge as to your point of view. Settlement conferences are for educating your opponents. Office meetings are for educating your clients. Educating ourselves is a continuous process.
Here comes the first internal contradiction. To be a good trial lawyer, you need to be a teacher. Control is about the wars we fight.
You need to control yourself. First, look at the practice as an intellectual exercise. A lawyer cannot afford the luxury of recreational anger. (I did not make that up, but cannot remember the name of the lawyer from whom I heard it many years ago.) If you are dealing with a jerk of an opponent, play above or below him. Do not engage, as you will lose focus.
You need to control the situation. Form the issues in discussions. Be the person in the courtroom to whom the jury looks for the right answer. Be the person to whom the judge looks for guidance. Do that by being prepared for the questions. Read the rules and statutes and the cases. If there is one common complaint among judges, it is unprepared lawyers. Knowledge is control.
The finest compliment you can hear is: “We have never done it that way, but it sounds fair, let’s do it.”
Do not copy and here is why. You need to understand why you are doing something before you can learn it. Why am I asking this question? Why do these facts fit my case? Why did the court rule the way it did? What is the logic? We spend too much time calling each other to ask for a copy of a complaint or interrogatories or a motion. You do not need to reinvent each time you undertake a task, but you do need to know what you are trying to do before you blindly follow.
In many ways this is the most important principal. What if the way to measure intelligence is to determine at how many levels of abstraction a person can think. Chess players think many moves ahead, contemplating all of the possibilities. Most of us cannot think past lunch. Jurors may be smarter than lawyers, but in the context of a trial, will hold to the most basic and easily understood principals. Do not get lost in the upper tiers of argument.
We have set the baseline. Nowhere to go from here, but up. See you in the next issue.
Law and Fact
The Journal of the Cuyahoga County Bar Association