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American Bar Association

Young Lawyer Q&A

The Young Lawyer Subcommittee has put together an advice column by asking seasoned trial lawyers their thoughts on a variety of questions that may provide helpful insight for young lawyers in trial practice. If you have questions you would like to submit or advice you would like to offer, please send your content to Audra Byrd or Kiran Nagulapalli.

Do you have any general advice for the first time a lawyer appears in open court?  What do you wish you had known, or what have you learned the hard way? 

  • Be respectful. To drivers on the way to court, to pedestrians as you enter the parking lot, to those seeking a parking space in the parking lot, to the young, elderly, messy, dressy, and everyone else as you walk to the courthouse, to the bailiffs and guards in the courthouse, to the clerks, and to the other lawyers, clients, and people in the courthouse.  Smile. Look them in the eye. Acknowledge their presence. Be courteous. Be humble. You never know who may be your judge, your juror, your clerk, your bailiff, or just an observer who will pass the word along about what they saw you doing. You are creating a reputation. And that reputation is being built with your every word, your every act, and your every kindness—or lack thereof.  From single words and single acts, judges, jurors, clerks, bailiffs, and fellow lawyers will form an impression about whether they can trust you and whether they want to help you. Life as a lawyer is a lot easier with a reputation of trustworthiness. Be respectful and show you are a person of character that can be trusted . . .even when no one is looking . . . or so you think.

  • Do not be intimidated by your judge. Keep in mind that, for the most part, you are far more familiar with the facts of your case and probably as well versed in the law of your case as the judge will be. Accordingly, concede the points that should be conceded, but don't hesitate to push back on those points (whether legal or factual) about which you feel confident. My experience is that a judge is less likely to consider (or respect) the argument of an attorney who will not concede untenable points but will respect an attorney who holds his or her ground when they should. The judge (who is usually overworked) will also appreciate your focus on the real issues.

  • Do not fall in love with your case. When preparing, know the strengths and weaknesses of your case and the strength and weaknesses of the opposing side’s case. Lawyers that ignore the strengths of their opponent’s case do so at their peril. One method I have used is to map out the opposing arguments as if I was representing the other side. It is a good exercise in preparing arguments on behalf of your client.

Do not make faces or reactions that the jury can see. That is easier said than done. When opposing counsel says something you know to be wrong, maintain a “stone face.”  I have polled jurors after every case I have tried, and it is amazing how often this sort of thing comes up. When lawyers make faces and negatively react to the proceedings, it plays poorly with jurors.

Do not be scripted. Whether it’s an oral argument on a motion, opening statement at trial or a cross-examination, young lawyers often make the mistake of scripting out arguments or questions. Do not do it. Have the points you want to make or the issues you need to cover written down, but do not read off a script—especially in front of jury. You need to be conversational, to be able to react to whatever questions or objections you are getting, and to be nimble. Scripts make that difficult. If you know your case and the law, you need no script.

Do not over-try your case. Get what you need and get out.  It is all about putting up enough evidence to support your claims or defenses and being able to support what you have to say in opening and closing. Anything else is unneeded fluff.  Jurors are people that have lives and jobs. For every second you are unnecessarily making them sit there, they will make you pay. The best trial attorneys I know always put up the shortest case they can. It is yet one more major difference between paper litigation and trial practice.

  • Don’t be shy. Get there early and introduce yourself to everyone in the room. (Better yet, have somebody introduce you.) Clerks and bailiffs are no less important to your success in a courtroom than your preparation, your ability to match up with your adversaries and your credibility with the judge or jury. 

    Before they abolished the law that allowed third-year law students to take the bar exam before graduation, it was possible (as it was for me) to know that you could start practice right after graduation (pass the bar but don’t flunk anything in your final semester). I handled my first case as a young assistant prosecutor only days after my graduation. This didn’t give me much chance to prepare my first case (a preliminary hearing). Without interviewing my witness (a cooperating accomplice), I planned to elicit the information from him as it was described in the written police report describing his interview. Within the first few foundational questions when I tried to establish how my witness knew the defendant, he responded in effect that he didn’t know my client or what I was asking about. About all I remembered from my evidence class was to ask to postpone the hearing due to my “surprise” about the witness’s testimony. After I stated my ground, the judge responded, “I bet you are surprised.” I got the mess straightened out within the same day, after intervention from the witness’s counsel. Lesson learned:  Never, never, and never call anyone as a witness if you haven’t personally spoken with them before they testify.

  • • I did a judicial clerkship right after law school, and I strongly recommend that every new law grad do one. Clerkships can be natural confidence builders because you will see just how bad the performances of some lawyers are.

  • I distinctly remember being awed the first time I called court to order for my judge, who sat in our courthouse’s ceremonial courtroom at the time.  It is a beautiful, cavernous place, and I was convinced that I was about to see lawyering at its finest.  Suffice to say that I did not.  To be sure, there were plenty of times that year that I observed excellent lawyers in action, and I picked up great lessons from watching them.   But I also got value from watching the less-prepared lawyers; it gave me confidence that I would not get thrown out of court for incompetence when I tried my first case.

What do you like most about trying cases? What do you find to be the greatest challenge?

  • • Creativity. In the products liability context, the exact same product is sometimes found defective and sometimes not defective with essentially the same jury instructions. Judges sometimes rule differently on what seems like the exact same fact pattern. At the highest levels of our legal system, we accept 5–4 decisions as the law, even though nearly half the justices saw things differently. Indeed, any case that goes to trial almost certainly involves two sets of lawyers who have scrutinized for months and perhaps years the exact same evidence and have come to different conclusions about the facts and truth. These lawyers who could not agree on the facts and truth before trial then proceed to trial thinking that, in a few days, all or most of the 6 to 12 people in a jury will find a common agreement on the facts and truth that eluded the lawyers for months and years before trial.  That is a fantasy and a myth. Trials are about justice. A fair resolution based on the evidence presented that allows the jury or judge and the parties to feel comfortable leaving the past and proceeding forward into the future. The story behind why we should choose a particular resolution is critical. It fuels the jury’s comfort with the proposed course of action. The greatest challenge, and opportunity, of trials is orchestrating a compelling story of justice from the available evidence. The possible stories and how they are presented are infinite and bounded only by the available evidence and our imagination. But in the end, it is the compelling story about justice that wins. And it takes creativity to weave that compelling story.

  • • I enjoy the excitement that a trial (particularly a jury trial) generates. I grew up in the practice of law when litigation was truly an adversarial proceeding. That is not so much the case today because we have so many other alternate ways to resolve disputes. When you try a jury trial, you control every aspect of your case from deciding what witnesses you will have testify, how you cross-examine the other party's witnesses and what arguments you make to the jury. Although many studies support the proposition that jurors have generally made up their mind before the closing argument, I find the closing argument the most exciting part of a jury trial.

  • • If a case goes to trial these days, it generally means that you have some good defenses and arguments, so it is a forum that allows you to make your arguments through evidence—as opposed to just legal discussion—and bring some finality to it.

It is great because it forces you to go through the exercise of taking complicated legal issues and mounds of evidence, and presenting them in a concise way that can relate to lay people on the jury. In other words, it forces you to connect your case with regular people, as opposed to just judges and lawyers. The ability to do this right is what separates great trial lawyers from mediocre trial lawyers. One’s pedigree generally does not necessarily lend itself to this skill, and it is the key to being a successful trial lawyer.

Trial also allows you to get away from over-preparing and being scripted like in a brief, and allows you to think on your feet, react to what is going on and adjust. Sort of like a football game where you have a game plan until the first hit.

All these things present great challenges, which is fun and rewarding. But the greatest challenge is trying to predict what a jury will do. No one ever knows. I have had jury trials in which I thought the jury was on my side, and I got an adverse verdict. Conversely, I have had trials in which I thought everything was going against me, and the jury hated my client, and we got a defense verdict. It is a huge error to try to stereotype or predict what a juror will do. You never know what experiences people are bringing to the jury box that will slant their decision-making—voir dire gives only limited opportunity to explore that. So trial is a huge gamble, regardless of how strong your case is.

  • • After 35 years as a trial attorney, I think the answer is simple. I have more fun actually handling cases in court than anything else that I must do to get there. There is no place that I would rather be. Almost everyone there (adversaries, judges, court personnel, etc.) are my friends. Learning how to enjoy yourself in a courtroom, beyond the technical nuts and bolts of trial, is an acquired skill.

Posturing adversary counsel, who are acting more to impress their clients than to effectively represent them, are my greatest frustration. Worthy and skilled adversaries are my greatest challenge.

  • • First, trials are what give me the ability to help people. If someone has been badly wronged, then my law license gives me the ability to get justice for that person by winning a trial. These are powerful educations we have, and using them for the good is a wonderful feeling.

Second, trials have a centering effect on lawyers and the advice they give. Many lawyers give advice on a whole host of topics, but not many of them really think through why they are giving the advice they are. The answer is because this issue might matter in a trial one day.  Trials are when we find out whether the right advice was given, whether it was followed, and what the advice will be going forward to other clients, based on the lessons learned at that trial.

Finally, job security. You can outsource contract reviews, document productions, and even complicated business deals, but you can’t outsource trials.

What is the biggest surprise you encountered in trying a case, and how did you handle it?

  • • The fact that a trial is a conversation was surprising to me. I started by thinking I was making a speech. I was demonstrating. I was showing. I was telling. But I eventually realized that what I should be doing is having a quiet conversation with someone who has a big decision before them. Someone who wants to do the right thing. Someone who may not talk back but needs a friend they can identify with and trust to guide them to a just result. This changed my entire approach to trials.

  • • I represented a beer distributor in a suit filed against the company by an advertising agency, and I sent an associate to set the trial date. In those days, there were no pretrial or scheduling orders and when I appeared for the trial at the circuit court I found, to my dismay, that the matter had been set with a jury and the associate failed to tell me this.  Preparing for a bench trial generally requires less preparation than a jury trial. I was able to scramble, and I tried the case and won it. But needless to say, I was not very happy with the associate.

  • • Generally, it is easy to misdiagnose what piece of evidence in a case the jury will focus on. I have had several cases where the jury latches onto evidence that I deemed to be innocuous or inconsequential. That is one of the reasons I like to run mock trials of large cases to figure out that kind of stuff.

It never ceases to amaze me how certain witnesses can be so good in prep and yet be terrible on the stand. The only way to fix it is to try to rehabilitate them as best you can. 

  • • There are surprises every day in every case. It is impossible to script trials. I describe what I do in courtrooms as being much more like “improvisational theater” where you develop the ability to think quickly on your feet to handle almost anything that can come up.

  • • I had a shock one time when I served as “stand-by” counsel in federal court, meaning that a criminal defendant insisted upon representing himself, but the presiding judge still appointed him a “stand-by” lawyer to assist him with technical legal issues.   I sat through that three-day trial, watching the defendant give a terrible opening statement, asking offensive and ill-advised (at best) questions of witnesses, alienate the jury, and generally foul up the trial as much as could be.  It got tedious quickly.  I couldn’t just tune out, but I literally had nothing to do.  I was going to be very happy when it was over.

Finally it came time for closing arguments.   As the prosecutor sat down after giving his dignified and very effective closing, I figured the defendant would give his own rambling account, the jury would come back quickly against him, and I’d finally be done with all of this.   Instead, just as it was time for him to do his closing, he told the judge that he was invoking his right to counsel, and he wanted me to do it instead!

The judge was kind enough to give me a lunch break to think about how to throw all of this together, but I did end up having to do the closing with virtually no preparation.  I decided to be very honest with the jury.  In apologetic tones, I let them know that the trial should not have gone the way it had until that point.   I then made the very best points I could, in a conversational style (which was easy because I did not have a single note in front of me.)  The jury ended up acquitting him of the most serious charge.

How can young lawyers best support a senior lawyer in a trial practice? What is most often lacking or inadequate in that support?

  • • Pay very close attention to details. Movies, plays, novels, art, and music all capture our imagination and move our souls with tiny details arranged in a manner that connects the matter before us to our own experiences, biases, and beliefs. A young lawyer who can spot, develop, and capture the little facts in support of a trial story and theme is invaluable. Enthusiastic dedication to understanding the trial stories and themes and using that energy in the grunt work of reviewing documents, initiating and responding to discovery, and conducting legal research to uncover and develop those little nuggets is pure gold in the eyes of a senior lawyer. Also attention to simple matters like calendaring, page limits, fonts, and other procedures also gives the senior lawyer confidence that nothing is falling between the cracks and increases the senior lawyer’s trust in the capability of the young lawyer. With this trust comes reliance, greater responsibilities, and increased opportunities to learn even more. By contrast, the failure to pay attention to minute details with vigor will cause a lack of trust, a pullback on reliance, and little opportunity to gain greater responsibilities and learning opportunities. You must learn to walk before you can run. Reading every rule and every case in detail at the beginning will help you run in the future. Skimming forces you to review again and again forever. Pay attention to detail.

  • • I expect timeliness in whatever I may give someone to do and also expect that it is, for the most part, done correctly. If, for example, I give someone interrogatories to work on but they come back to me in a form that is confusing or incomplete, it would, frankly, have been far easier for me to have done it myself.

  • • Be prepared to do whatever is asked. That may include doing some fly-by-the-seat-of-your-pants research to support an objection to redacting documents that will be published to the jury to making sure the demonstratives and technical components of your case are sound. Anything can happen at trial, so the young associate needs to be prepared to do whatever is asked.

  • • Be willing to do anything and everything they ask in support. No task is too menial that you can’t learn from it. Try to observe in court what you worked on, so that you can see how to put together your case from beginning to end. Stand ready to do anything inside the courtroom that you are allowed to do.

Young attorneys sometimes exhibit an unjustifiable sense of entitlement and believe that paying their dues is beneath them. I’m sure that Tiger Woods learned as much if not more from caddying than he did from his golf lessons. Law schools prepare attorneys less for the realities of trial practice than in many other areas. While it didn’t pay much, I viewed my first three years in practice as a prosecutor (where I gained more experience inside courtrooms than I could anywhere else) as the equivalent of a medical residency. They were paying me that relatively small salary to learn my trade. I was willing to do anything asked of me. Law schools are doing a better job with transitioning their students to the realities of law practice before graduation. However, what is still missing is the equivalent of a medical residency after graduation. Young attorneys should simply view those first few years in practice this way. If they do, both they and their senior attorneys will benefit from it. 

  • • Understand the stages of a trial and what it takes to prepare them.  These stages include: pretrial conference where issues are narrowed and evidentiary questions are decided: motions in limine; offers of proof; voir dire; opening statements; evidence offered by direct of cross examination; concise memoranda citing law making evidence admissible or inadmissible for trial use; motions for judgment as a matter of law; closing argument; and jury charges.

A lawyer must prepare a trial memorandum in which the claims and defenses of each party are identified with supporting evidence.  The lawyer must have a full grasp of the rules of evidence to show that a document or testimony is admissible or inadmissible and use good judgment with objections. Once trial starts, it is too late to begin analyzing evidence. Evidence issues arise, but a lawyer must plan proof and excluding the opposition’s evidence.

The case must be prepared with trial in mind. Ask deposition questions so the transcript is admissible. Ensure an expert’s exhibits are admissible during pretrial discovery and preparation. Know nuts and bolts such as business records affidavits for trial evidence to avoid a records custodian at trial or deposition, and proper service of subpoenas. Perform reconnaissance on the courtroom to know how the trial technology will be used. What are the judge’s peeves and preferences?

Understand the case is not about you; it is about obtaining the best possible result for your client. If a lawyer is not competitive, serious, and passionate about trials, he or she should find other work. Know you must strive for excellence in each project and submit it timely.

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