WHAT WORKS FOR ME?
Right off the bat, let me give credit where credit is due.
The title to this article is a direct lifting of the title of a really terrific Mandatory Continuing Legal Education seminar that has been held in December for the past couple of years in Charleston. Assembled by the Charleston Bar and herded by the indefatigable Ladd Howell, late-in-the-year MCLE Credits are garnered by showing up to hear the musings and opining of such luminaries as Gedney Howe, Andy Savage, Dawes Cooke and Marvin Infinger, just to name a few.
And, as one cannot have ‘the bright lights on all the time’, I’ve been asked to speak too. ‘Grinding’ is big part of what makes up successful case preparation and trial work. In candor, I am a Happy Grinder.
My approach has been in the mode of Billy Sunday, Elmer Gantry, broad brush, ‘what works for me out on the ground’ and so I share some of those thoughts now with a broader audience.
I have become increasingly mindful and thoughtful and grateful for how much I love practicing law and representing the folks that I do and I have become more vigorous in my ‘evangelism’ about same as I’m closer to the ‘end’ than the ‘beginning’.
It would be fair to say that this writing embodies my philosophies about what makes a successful practice. This is no piece of scholarly legal writing; rather, it is a de minimus scraping of the surface of whatever I’ve discovered along the way about the sense and feel and art of getting cases ready to go.
I believe this will evolve into a multi-part article.
Some of this seems so basic, I presume you’ll say to yourself, “Well, what the Hell, don’t I already know that!” But the more important question is: “Am I really, really consistently doing that?” and “That’s interesting but I think there’s a better or different way to do that.”
B. C. Forbes often liked to say, “With all thy getting, get wisdom.” And, of course, we get wisdom in our doing and our figuring out how to go about our doing more effectively.
The Key here, I respectfully submit, is the developing of a philosophy of approach to every case which includes most, if not all, of these things, umbrella’ed by an always growing attitude that “I am in control of this case and as I have taken this cause on, I am going to own it well and forcefully enough to make it successful.”
I NEVER let my Education get in the way of my Learning. Whether you are an legal scholar, a whizbang specialist in your practice area or a grumpy plugger, you are missing an enormous slice of success if you do not have a daily plan for extraneous reading. Read, Read, Read! If you are not attuned to the quirks and goings-on of your community, your place, your region, your world, you are missing out on the great unceasing march of Human Nature that drives every controversy on which you work.
Start with your area’s local newspaper, add Charlotteand Atlanta, the New York Times and Washington Post too. Easy to do with a computer and a keyboard. Do not neglect the “Local” section.
Be sure you are reading books too. Even if you don’t enjoy, force yourself. It will become a habit you cannot do without. Make sure you are reading history as history ALWAYS involves conflict. I also recommend some version of the ART OF WAR ( I’ve enoyed the translation done by Thomas Cleary, Shambhala, 1988) for reading continuously and serially for the rest of your professional life and suggest large helpings of military history and biography.
Sidebar! Here are some outstanding Lawyering/Trial Practice books that I promise you will find engaging and interesting: THE CURMUDGEON’S GUIDE TO PRACTICING LAW by Mark Herrmann, ABA Press, 2006 and ADVOCACY by David Ross QC, Cambridge University Press,2005 and let us not forget David Ball’s ON DAMAGES, The Essential Update, 2nd edition, NITA (National Institute of Trial Advocacy, 2005
I also encourage reading great political fiction such as Anthony Trollope’s THE PRIME MINISTER and Edwin O’Connor’s THE LAST HURRAH. Toss in Billy Brammer’s (BB was press liason and speechwriter during Johnson’s glory days in the Seanate) THE GAY PLACE and Robert Penn Warren’s ALL THE KINGS MEN and you have started a wonderful look into the working of tactics, strategy and human nature in the roil of conflict.
The whole idea here is to expand and grow your creative appreciation for the ‘human element’ in each and every client and case you have in your office.
Make it a point to sit down with your office staff periodically and brainstorm on your cases. The people that help us do our work are far smarter and savvy about many, many things in this world than we lawyers are and their perspectives are often more broad and well-defined than ours. BUT, they are usually reticent to speak out so you have got to not only go and ask them to you have to nurture that dialogue. Let them tell you how a case will be presented, which witnesses will be used, in what order, what exhibits are key, how those exhibits will put to use within the context of the case and the witnesses, how each element necessary will be nailed down and too, have them tell you how the defense is going to defend the case.
This process is not an instantaneous one. It is one that entails your soliciting them, asking them, encouraging them to speak their minds, allowing them time to speak while you do nothing more than ask questions, and most importantly, become a better and more effective listener.
They want to help and if you will bring them into each case, not as a mechanic, simply typing and boiler-plating away, but as an encouraged, thoughtful asset, they will turn into engines of creativity and skill. They will help you be successful. They will give you greater strength and confidence.
Let them into the Bigger Picture; they generally are not encouraged to look at the case as a whole-they do a piece here and a piece there- so allow them a platform upon which to do so. Buy them each a copy of James McEllhaney’s TRIAL NOTEBOOK, 4th Edition, ABA’s Section on Litigation ( www.ababooks.org). Buy them Only this ONE book. It is their Basic Training Manual. Tell them as part of their duties and responsibilities, they must go through the whole thing. You’ll be pleasantly surprised. They will. You have empowered them to think like an Effective and Successful lawyer. You’ve just expanded your scope and reach. Congratulations!
P.S. They’ll end up buying other books and suggesting others for you to get too.
I have done this and do this with each of my (now) three legal assistants. We set aside time each couple of weeks to not only review the status of all cases in the office (We call this ‘The Black Book’ meeting but also regularly scheduled meetings, usually about 30 minutes to an hour, where we do NOT answer the phones, where we shut the doors, where we focus and discuss only One case. The discussions must be wide open, unencumbered, freewheeling and unlimited. And, they must be ONLY about that one case.
What’s going on here? You are now in the process of ‘Game Planning’ and ‘Storyboarding’ your case and the best ideas will arise out of these meetings which will help set up how the case will be presented. And here is where you begin the assemblage of the Big Three, they being 1) ELEMENTS Required 2) PROOF of Those Elements Required and 3) ORDER of Proof for those Elements Required and it must be done on BOTH Sides of the case.
Sidebar! Visuals help. Have a blackboard, whiteboard, something classroom-like in size to write on so as you are brainstorming, you can chart it out for all to see and mull over. Another very useful tool is the very large tear-away sticky pads available at office supply stores. Stick them up on a conference room wall and have at it. Great tools for explaining things to clients.
Sidebar! Same sticky pads are wonderful for use at trial, especially when you have an item of evidence, such as some damning language or a lab value or a trial theme ‘Key Phrase’ which opposing counsel wishes would disappear. I like to have it, whatever it is, written out Neatly (Obviously, this writing is done by someone other than me...) and BIG in bold color and stick it up for the Jury to readily see. Defense counsel hates it when I’m doing this because the Jury looks at it and absorbs it and it’s just Right There Their Face. Invariably, defense counsel, when it comes their turn, goes and takes it down, thus further alerting the Jury to its importance and calling attention to its significance; you always get to keep sticking it back up and they’ll keep taking it down. It’s a Win-Win for the side holding that card. It is the ubiquitous, simple, portable exhibit and it costs next to nothing to create and use.
It was always said of Alabama’s Bear Bryant, “He could take his’un and beat your’un and he could take your’un and beat his’un.” Think ‘Both Sides’ and it’ll be said of you.
Your template will be the Jury Charges that will be given to Court. Have the pertinent sections of the Charge Books copied and at the ready for your discussions as to each case.
In that context, you all need to be aware, always aware of two very critical things. Juries and Graphics. The Jury is the ultimate filter through which your case is processed for acceptance or rejection. Your Graphics are vitally important as the vehicles and tools that will help the jury accept and embrace your witnesses and your case,
You must be thinking Exhibits, Graphics, Illustrations, Charts, Compilations and Summaries all the time. When you think about a witness, you should be thinking about what will he be handed or asked to describe while on the stand. A great way to do this is to make a chart with these subparts: a) Witness b) Why a witnesss? c) Element proven d) Graphic. Juries identify witnesses with their graphics. “Oh Yes, that’s Mrs. Bascom; wasn’t that Xray of her back awful looking!” “Yes, that Dr. PettyFoggery sure looked uncomfortable when that lawyer handed him that big medical book and asked him to read that stuff about post-operative care of patients.” “You know, that chart showing all the money that bar made off those iron workers during that Christmas party made me mad.” You get the picture.
OK-Want to get excited about this? Yes, you do! Here’s another book for you. Again, from the ABA, this time, from their Tort and Trial Practice Section. ( Yes, I’ll be the first to acknowledge that much of what the ABA does mystifies me, disgruntles me, bores me and often infuriates me BUT, their trial and litigation sections have, simply put, wonderful and enormous selections of all sort of good publications that guide, teach and yes too, inspire one’s confidence.
Go get CREATING WINNING TRIAL STRATEGIES AND GRAPHICS, G. Christopher Ritter, ABA, 2004. Read it. You’ll thank me and Ritter even more.
And by the way, alongside ATLA’s always welcomed and helpful monthly magazine TRIAL, the ABA’s Section of Litigation’s quarterly journal LITIGATION is simply a consistently outstanding piece of work. Even if you do not belong to the ABA, you can subscribe to same for $140 a year. Worth it.
Sidebar! How to get The Jury into your Mind’s Eye? And you need to, really need to, because if The Jury will be receptive to your case, then the liability carrier and the defendant will not be so hell bent on allowing them the opportunity to strike them. The Jury must be explained and understood by you, your staff and your clients. Well, you can’t show everyone ‘Twelve Angry Men’ or ‘The Runaway Jury’ all the time-takes too long- but you can do what I did.
I went and got a dozen eggs, put the eggs in the refrigerator, kept the Styrofoam carton, went to Toys R’Us, bought a diverse set of little kids’ play figures (Old, Young, Black, White, Brown, Red, Male, Female, etc.; I must note they did not come in Smart, Dumb, Well To Do, Struggling, Bored, Angry, Thoughtful but you get the picture.), filled up each of the carton’s twelve egg indentures with Elmers’ Glue and set my little people into the slots where in a few hours, all had nicely dried. My Jury now sits front and center on my desk and is a very visible and constant reminder to all who enter that that’s what our business and our cases are about. The ‘panel’ serves as a great help tool when discussing a client’s case with the client, our staff and surely, when I mumbling to myself.
(I must also note that I haven’t yet summoned up the gumption to do a Judge in the same manner but I continue to search for that illustrative prop too. Trying www.forcounsel.com has been unsuccessful thus far.
So, get yourself to thinking about what motivates, what repels, what energizes, what compels and you’ll be well past the pack out there.
And too, what does your office look like? Does it inspire the people who work there to think creatively about the cases that literally live and breathe there? Or is it more what I call ‘lawyer schlock’, the standard bird prints, the cold-as-ice florescent lighting, the furniture store-bought uncomfortable, poor-padded chairs, the corporate rigidity out-of-a-box sterility that so many firms present to themselves and all their visitors. Awful.
Make your office warm, inviting, interesting, inspiring, unique. We frame and hang key exhibits and photos and all sorts of things from our cases. Our furniture is comfortable. The magazines are current, the carpet feels good, there is a nice flat-screen in the waiting area, our walls are painted in home colors, our staff is not hidden away out of sight, we have refreshments and candy always at the ready, our lighting is from lamps and recessed cans. I’ve worked on this for going on thirty-one years now; admittedly, it does cost money and it cannot be put together all at once but your office is your second home and over time, you must make it a place where your clients and guests and visitors feel comfortable, welcomed and entertained and also, more than a little intrigued and entranced, just the way you would want them to feel if you invited them to your home for drinks and dinner.
There are none so blind as those who will not see. It is imperative that you go to wherever your case arose, happened, occurred, whatever. I don’t care if it’s an office building, a mobile home, a parking lot, an intersection, a field, a hospital. You must view and photograph the scene of all the places involved. You must get it in your mind’s eye. You will carry a digital camera with you at all times. You must use it.
Make sure that the Written Discovery that compliments your Complaint truly does so and seeks to uncover what you really need to know to win. Do not use boilerplate. Cherrypick available boilerplate all you like but make sure you customize your questions and inquiries to focus on the key informational components needed; an easy and effective way to do this is to ask yourself, your spouse, your friends and especially your staff 1) What do we NEED to know? 2) What do we WANT to know?And make sure that you ask these two questions of your clients too. Then, refine and ask those questions in your discovery. It’s a great way to start the ball rolling in your favor and builds momentum for your side of the case.
I now stand down for a bit but when I return, I’ll begin to discuss a) My Five Part Approach to every case and b) the psychologies of what’s available to us as we go ever forward.
Call me if I can ever be of help. Now, get out there and get after it!
( E. Vernon F. Glenn has offices in Mount Pleasantand also is ‘Of Counsel’ to Allman, Spry, Leggett and Crumpler in Winston-Salem. He has been happily getting cases ‘ready to go’ for nigh unto 31 years now and no interest in stopping now. He can be reached at www.lowcountrylawyer.com and www.allmanspry.com and is always delighted to brainstorm with you.)
