Bar News - January 7, 2005
50 Things I Wish I Would Have Learned in Law School
By: Gene Summerlin
- Attention to detail is the most important trait of a good lawyer. Preparation beats talent 99 times out of 100 (and the one time it didn't, talent just got lucky.)
- When opposing counsel is obstructive during depositions or insists upon making speaking objections that suggest answers to the witness, bring a video camera to the next deposition and clearly point the camera at counsel, not the witness. (If asked, explain that you want the judge to have a clear record of counsel's behavior during the deposition.) You'll be surprised how quickly this clears up most problems.
- There is no such thing as dicta - what they told you in law school notwithstanding. If it appears in a relevant opinion, be prepared to deal with it substantively or lose.
- When drafting a complaint, the place to start is with the pattern jury instructions. Make sure you plead each and every element of your causes of action.
- When taking depositions of fact witnesses, pretend that you are talking with someone over coffee at the kitchen table. Don't worry about the form of your questions or whether the witness interrupts you or whether you (within normal conversational limits) interrupt the witness. Think in a conversational style and follow the witness's lead. When the witness says something important, go back and clearly and concisely re-ask a question to elicit the same response ("so, if I understand what you are saying, . . ."). The conversational styled questions get the good responses, the re-asked questions frame the responses in a format from which you can impeach the witness if necessary.
- Whenever possible, always visit the scene and take pictures if necessary. Whether you are dealing with a personal injury case or a commercial dispute, being there gives you insights that you can never get from reading about it.
- Work hard for a few weeks or months, and then take a break. Don't forget to enjoy what you do.
- Appreciate challenges, they make you a better and stronger person.
- Appreciate losses, they make you wiser and also make you a better and stronger person.
- Appreciate victories, they hold you up between the challenges and losses.
- Nothing is as simple as it seems, and nothing is as complex, either.
- Break projects down into manageable parts. Then just take on one part at a time.
- Take time just to think about your cases. You'll be surprised by the ideas you get.
- Practice arguing your cases to yourkids. They make good bedtime stories.
- Be home by your kids' bedtime most nights.
- Whether arguing to a judge or a jury, speak slower than you think you need to and don't be afraid to pause and think before answering questions.
- Be yourself. Don't try to act like that other lawyer who really impressed you. You're not that good an actor.
- Write in small, simple sentences. Be clear. Be concise.
- Always use topic sentences and include a road map of your argument.
- Never turn in the first, second or third draft of a brief, and when a senior lawyer asks you for a draft, he or she means your very best final product.
- Only pull all-nighters four days before or the very night before something is due. After staying up all night and through all or part of the next day, you will be worthless. Don't find yourself unable to function with still a day left before the deadline.
- Never wing it. Be prepared. For anything that might happen.
- Proof read everything at least twice. Many people (including judges and opposing counsel) will form their first impression of you based upon your written work product. If you make errors in your written work, you will be perceived as unprepared and sloppy in all that you do.
- Use your expert witnesses to prepare to take the defendant's deposition. Find out beforehand what the defendant should have done and what he shouldn't have done.
- Always inform a client of any settlement offer in writing, even if the client has already given you authority to reject an offer under a certain sum.
- Always return calls or attempt to return calls within 24 hours. Most complaints against attorneys filed with the bar association stem from attorneys who do not respond to client inquiries.
- Never, under any circumstances, lie to a client or shade the truth.
- Your character and integrity are your most valuable assets.
- In oral argument or at trial, treat opposing counsel as you would treat yourgrandfather, not your sibling, in a debate. Sharp remarks, even when deserved, will make you seem petty and detract from the force of the substance of your argument.
- Sometime, for practice, try writing the initial draft of your brief without citing any cases. You want to be able to justify your positions because you can show and argue that your position is substantively the right choice, not just because some other court did this once before. Once you have adequately explained why you are right, add in the cases as additional support. Not the other way around.
- Never refuse opposing counsel a favor when it is within your ability to grant it, and granting the favor will not cost you or your client anything. You will quickly build up a bank of trust and credibility with other lawyers.
- When you learn a new, neat trick - share it with others.
- Only practice law with people you trust. You don't have time to both practice law and check up on your partners.
- Don't be afraid of the big, mega-firms. Many of the people there are not that smart.
- Don't underestimate the intelligence of that small-town, bumpkin lawyer, he may be much smarter than you are.
- Remember that until a witness does something to turn the jury against him/her, the jury likes the witness more than they like you. Treat him or her with that in mind.
- No matter how carefully you plan and prepare, sometimes the weird and unexpected will occur and adversely impact your case. Get over it and move forward.
- Never write-off time or reduce a client's bill without letting the client know that you did so. If a particular project took too long and you cannot justifiably bill the client for the full amount, then by all means write off the unjustifiable portion. But by letting the client know that you have done this, the client will (a) be grateful that you are giving him/her a break; and (b) appreciate the fact that you are watching over legal costs on his/her behalf.
- An easy way to keep a client informed of all that is going on in his or her case is to automatically send the client a copyof each document that you send out or that comes in regarding the case.
- The most difficult aspect of responding to an adversary's argument is actually understanding the argument. Always try to listen to or read your opponent's theories objectively, or, even better, try to evaluate your opponent's arguments with a predisposition to agree, then you will be able to respond to the substance of what he/she is saying.
- When evaluating a case, don't become so focused on liability that you forget about damages. A clear liability case with zero in damages is worth . . . zero.
- When evaluating a case, don't become so focused on damages that you forget about liability. A $10 million case with no liability is worth . . . zero.
- Set aside one day a month to plan your calendar and update your "to do" list. Put that date on your calendar and don't schedule over it.
- Set aside one day a month to do the things you have been putting off and don't want to do. Put that date on your calendar and don't schedule over it.
- There are four kinds of tasks: (1) important and urgent; (2) important and non-urgent; (3) non-important and urgent; and (4) non-important and non-urgent. If it's not important, don't let the apparent urgency of the task draw you away from those tasks that are truly important.
- When evaluating the merits of a case, whether on the plaintiff's side or the defense side, recognize that the case will look its best on the day it first comes in - its all downhill from there.
- Laugh when something funny happens. Whether in the office, in a deposition or in the courtroom, keep your sense of humor.
- Don't ever stop being nervous in the minutes before a hearing, deposition or trial. Adrenalin is just your brain's way of getting you pumped up and ready to go.
- Listen to the war stories that old (er) lawyers tell, you can learn a lot from other people's experiences.
- Always try to be the kind of person your dog thinks you are.
Gene Summerlin practices with the law firm of Ogborn, Summerlin & Ogborn in Lincoln, Nebraska. Contact him at gene@osolaw.com. This article is copyrighted (C) Gene Summerlin 2002. Previously published in THE PRAIRIE BARRISTER, Vol. 8, No. 2 (2002) and is published with the permission of the BARRISTER and the author.
Opinions in Bar News
UNLESS OTHERWISE INDICATED, opinions expressed in letters or commentaries published in Bar News are solely those of the authors, and do not necessarily reflect the policies of the New Hampshire Bar Association Board of Governors, the Bar News Editorial Advisory Board or the Bar Association staff.
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