If You Want To Be A Trial Lawyer...
There is nothing quite like trying a case. How can you become better prepared?
Lunching with two fellow dinosaurs, we naturally chatted about how the profession has changed in the almost 50 (not a typo) years since we were all admitted to practice here in California. One of the many topics discussed (none of us had anything stronger than water to drink) was the pitiful condition of our state bar and how it had gone down the tubes, especially in the past decade or so. It used to be an organization that we were proud to be members of, and now, we are not even members, we are licensees. It used to be an organization whose governing board was mainly composed of lawyers, and now lawyers on the board of trustees are in the minority. There used to be a majority of lawyers in the California legislature. Bye-bye. The only thing that really hasn’t changed is the bar’s discipline process continuing to nail solos and small firm lawyers for what are often de minimis violations while giving a pass to those lawyers who have whatever clout make them Teflon for purposes of bar discipline.
We also chatted about how courtroom experience, be it arguing a motion, let alone trying a case, seems to be a thing of the past for the newbies. And please don’t say that handling an arbitration is the same as trying a case. Until you have announced “ready,” and the prospective jury panel troops in, pissed off because they are obligated to serve, it’s not.
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You look at the panel, the panel looks at you, and then the “fun,” if you can call it that, begins. After the first 12 jurors are called, seated in the jury box, sworn in, and stare at you, that’s usually when your stomach starts to churn, and you wonder why you didn’t go to the restroom beforehand. Anyone who says that voir dire is a piece of cake, that it doesn’t prompt any nerves, or that you can sail through the process without a hitch is just wrong.
Even though jury instructions clearly say that the jury is to weigh the evidence and not consider any extraneous evidence, nor evidence stricken by the court for any reason, jurors are human — at least right now, as artificial intelligence has not yet made it to the jury box. So, prospective jurors will look at you just as much as you look at them. They will look at the way you dress, the way you walk around the courtroom, if allowed to do so, the way you interact with the court and with opposing counsel, how organized you are, how you treat and handle witnesses. And they will pass judgment silently on all those things. You never know what a juror might say or do or think.
Why am I telling you all this? While transactional work keeps the world going, and advice hopefully keeps companies going, there was for me, and for my dinosaur friends at lunch, nothing quite like trying a case. And the reality is that unless you are in a government office or in an area of practice where going to trial is the rule rather than the exception, you will miss out on one of the fundamental experiences of being a lawyer, what is what most of us, if not all of us, got into the profession to do. Even though this post is more than a decade old, it’s still true.
So, it is your job, newbies, to get as much courtroom experience as possible. Get to argue that motion, without a jury present, get to handle a court trial, and then push, push, push to get a jury trial, even if second chair or third chair. The only way to become a trial lawyer is to become a trial lawyer. There are tons of litigators, but not all that many trial lawyers. They are a breed unto themselves, facing possible extinction as courts want cases settled, rather than tried. We all understand the logic of that, but it deprives us of that opportunity.
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Learning how to be a trial lawyer is brick by brick or “bird by bird,” as Anne Lamott labels it. The more trials you can watch as examples the better — and not the ones on TV, which are scripted for dramatic moments. Trial can be excruciatingly slow, especially if one lawyer or another is inexperienced. But learn from that inexperience.
Watching trials is a great way to “Monday morning quarterback.” You can ask yourself why that objection was made, why was that evidence not introduced for lack of foundation, and what exactly is a “foundation?” The more you educate yourself, including taking as many courses as possible (some bar associations offer trial experiences in collaboration with courts), the better trial lawyer you can become (assuming you are given the opportunity to do so). You just need to grab such opportunities when they arise.
When considering where to go after law school, consider that a smaller firm may well provide more opportunities for trial work than the mega Biglaw firm. You may not see the inside of a courtroom in Biglaw for years, which is why there is a push by federal judges to persuade Biglaw partners to let junior associates take the lead in arguing motions and conducting hearings. Judges are unhappy over the lack of opportunities for them to get courtroom experience. It’s time to share the wealth of billable hours.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
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