Tips For Trial Lawyers
When recently asked to pen a column on tips for the trial practitioner, I thought about an old experience. When I was starting out as a lawyer, I once asked an older lawyer whom I admired, “Steve, you’ve been around and have seen the best. What’s your secret to how to become a successful plaintiff’s attorney?” The old lawyer replied: “Jeff, go out there and find yourself some really good cases. Any lawyer can get a nice six-figure settlement for a million dollar case.”
This was not the vote of confidence I was looking for at the time. Hopefully, I can offer something a little more useful... or at least something easier to implement.
I’ll start by stating the obvious. The best plaintiff attorneys are able to make cases work that seem unappealing to most people’s first impression. They are somehow able to “spin straw into gold” by looking closely and creatively at a case. But how do you learn these skills? To some extent, they are intuitive, but they can also be learned through the process of carefully round-tabling cases with other experienced lawyers, and through focus groups with non-lawyers.
The jury appeal of some cases can be dramatically increased by carefully developing the proper case themes. To cite one example, there is the case of a 21-year-old woman who suffered a moderately severe frontal lobe brain injury at age 14. The injury did not severely impair Amber’s IQ or her “test taking” skills but it did severely affect the centers of the brain that regulate judgment and inhibition control. Fortunately the brain injury could be seen on an MRI scan. Formerly a strong B+ student in high school without serious behavior issues, after the accident, Amber’s life quickly unraveled. She eventually developed a severe methamphetamine addiction, dropped out of school and, despite her parents’ determined efforts to help her, wound up in prison on a drug conviction. She now has severe mental health problems in addition to her brain injury. Her doctors doubt she will ever be able to support herself with a steady job.
Several lawyers turned down Amber’s case. They told Amber’s parents they could not risk an expensive jury trial for a “drug addict’s” claim in conservative Utah County. However, my office took the case. We know a Utah County jury’s first instinct may be to punish Amber for failing to “control” her drug habit. To overcome this, we will put on expert scientific testimony to explain why the brain damage makes Amber so vulnerable to following the wrong impulses and taking bad risks. Our job will be to help the jury understand why there is such a strong correlation between brain injury and drug and alcohol use.
After round-tabling the case in our office, we decided that several themes were appropriate for this case. First, most people know how emotionally vulnerable young teenage girls are. We will therefore emphasize that this particular injury to the frontal lobes of the brain, is especially devastating for a 14-year-old girl. At 14 the frontal lobes are still developing. And 14-year-old girls already struggle with self-esteem issues in our society. This particular type of injury happened to Amber at the worst of all possible times.
During round-tabling, a second theme came out. While people did not necessarily relate favorably to our description of Amber, they certainly did relate to the plight of her parents. It is every parent’s nightmare to “lose” a talented child to drugs. At trial, we’ll emphasize that the plaintiffs who filed suit are Amber’s parents, who are her court appointed conservators. We will make it clear that the parents’ desire and intention is that the money the jury awards will first be used for treatment of Amber’s addiction and mental health issues. We will also remind the jury that the real issue in this case is not whether Amber is a bad person but instead, who will have to bear the financial burden of Amber’s serious problems, which will be lifelong. Will it be Amber’s parents or the corporate defendant whose negligence damaged Amber’s brain?
We know there is no guarantee these themes and arguments will bring about a home run verdict. However, we think that they increase our odds.
We all know that a good plaintiff lawyer must be an optimist--a “can do” lawyer. On the other hand, Don Quixote would not have lasted long in the personal injury practice, at least not handling cases on contingency. So the magic question is always: where do you draw the fine line between “can do” and Quixote?
I looked for the answer to this question on Ask Jeeves.com but came up empty. So, I will ramble on some more. Tip number one to figuring out if the case is really good, and to getting the most out of the case you have is: get in touch with your client.
Here is what I mean. Take the time, early in the case, to get know your client. I am not talking about merely going through a standard client intake interview where the lawyer obtains the “record facts” or walks through a checklist of standard case screening questions. I am talking about a longer, unhurried, free flowing conversation between you and your client and perhaps similar conversations with selected family, friends or colleagues of your client. I think a lawyer should approach this type of interview as though the task was to write a life story of his client for a family history album or biography. Instead of taking notes, which interrupts the flow of the conversation, turn on a tape recorder, and without pencil or pen in hand ask your client to “tell me about your life, starting from the beginning.” Over the course of an afternoon, you will eventually get to what things in life are important to him, what gives his life meaning, and what mistakes he regrets the most. Talk with him about his hopes and fears, what his life was like when he was “on top of his game,” what makes him laugh and cry, maybe even his political opinions and what he likes to eat for dinner. And anything else that comes up.
I always learn important things during these sessions. Of course, I obtain information that helps me decide on discovery leads and which helps me develop additional case themes. But the greatest benefit from getting to know my client on this level goes beyond gathering information. I will usually find qualities in my client that I admire or relate to. When this process works, I come away caring about the client on a deeper level and this makes me much more committed to the work. And certainly, knowing the client at this level allows me to tell a more interesting and engaging story to a jury or mediator.
Sometimes this bonding does not happen. If so, I know this case needs to go to another lawyer, or it needs to be settled.
Many defense lawyers think of their cases as files. On the plaintiff side, we must think of our work as a fight for the cause of people we care about. When the lawyer really gets to know their client, that becomes a lot easier to do.
This article was written by Jeffrey D. Eisenberg, for more information please click here.
