Tribulations About Trials

I see law schools turning out terrific candidates, terrific lawyers, who are in a position to do really well, but can’t reach their potential because of the way the profession is drifting. They just don’t have courtroom experience.

After five or seven years in practice, litigators rarely have courtroom experience and have only occasionally questioned witnesses in depositions. Their partners have an obligation to make opportunities for these lawyers to get out and learn their trade. Otherwise they get out after seven years and look to make partner somewhere, but who’s going to hire you if no one’s ever seen you and you have no courtroom experience? There’s a lot of, “Why would we go to court if we can solve this by motion?” This was even true when I was a young lawyer, and I got out in 1982.

It’s the biggest problem at blue-chip firms. Now we have blue-chip firms going on a binge of hiring criminal defense lawyers—and they’re not finding them from law reviews—because they have courtroom experience. So having been Order of the Coif can actually limit your trajectory. You wind up being really good as a brief writer, but try selling that when you’re 55 years old. 

Part of it is also that there are fewer and fewer trials in federal courts across the country. In many federal district courts now, there’s not even an argument on motions; it’s all written, so you don’t face a judge, let alone a jury. 

All of this has created a lack of basic trial skills. I have lawyers who turn their back to me and talk to other lawyers throughout [trial]. How you address the court, how you make an argument, how you examine a witness, how you introduce documentary evidence, how you lay a foundation, how you authenticate—all of these things should be second nature to lawyers, but it takes practice and experience to learn it and to maintain it. 

But in bankruptcy courts, people argue every week and there are trials every week. So my pitch to young lawyers is: Look for an opportunity to go to bankruptcy court. You can get into a courtroom; you can talk to a judge; you can examine a witness; there are opportunities to learn your profession.

I also advise that lawyers not rely on forms and really think about what they write, and realize that they’re writing to convince someone on behalf of their clients. You can get rid of the arcana; if you say it succinctly, it’s more likely to be read by the judge than if you load it up with useless verbal clutter. Maybe that’s redundant, and there I go, violating my own rule. But every day I get briefs that have heretofores, whereafters, herebys, wherebys—stuff that hasn’t been seen in legal writing since Dickens. On the other hand, I’ve had lawyers say, “Wait, you read what I wrote?” So maybe there are judges who don’t read anything; I don’t know.

Writing is important and presentation is important; that’s the total package and what it all comes down to.

Dodd’s Law: How to calculate lawyer professionalism

“I have a thing I like to call Dodd’s Law—it’s like high school chemistry—that says: The degree of professionalism is inversely related to the distance between the courtroom and lawyer’s office. So the further the office is away, the less professional the lawyer behaves. To be less verbose, the concept is, if you’re from another place coming in, you think you’re never going to see this judge again, so you’ll do whatever you want. And the chances are, just as importantly, you’re not going to deal with these lawyers ever again. But what you do to them today, you can expect them to do to you tomorrow. The people here all typically play well together, but occasionally someone comes in—Texas is infamous for this—and misbehaves.”