Friday, July 4, 2014

What Keeps You Out of Trial?

"The decision to go to trial is the essential first step for anyone who wants to be a trial lawyer."

 My First Attempt at Trial.

It was 1983. I was sitting in court tightly clutching my file. My clients were two real estate agents sued by the purchaser of a home. The purchaser claimed the agents failed to disclose that water inundated the property. The opposing attorney had photos of mushrooms growing under a carpet that she hoped would prove water inundation.

I did not know opposing counsel. I knew she was a solo practitioner and I knew I was from a small firm -- for all the good that did me. I asked more experienced attorneys in the litigation department what to do at trial. The best advice I received was, "Make sure your shoes are shined." I did not know was that my opponent was facing her first trial, just as I was.

It was a small case. The whole file fit in a very thin redwell folder. My clients sat with me in court. My heart pounded in my chest as I waited for the master calendar judge to take the bench. I couldn't catch my breath as I waited.

The judge took the bench, called our case, and sent my opponent and me into the hall to discuss settlement. We ended up settling the case rather than going to trial. Many years later I talked about that "trial" with my now friend. By then she was a formidable trial attorney, who has now retired from trial and is a much in-demand mediator. Turns out she was just as afraid of that first trial as I was and she was just as ill-equipped to try the case as I was. We shared something else. Both of us decided, independently, that if we were going to be trial lawyers we couldn't let fear prevent us from going to trial.

My First Jury Trial.

The decision to go to trial is the essential first step for anyone who wants to be a trial lawyer. My first jury trial came when my love for my client and need for justice exceeded my fear for how I looked. Shirley was an undocumented Mexican house cleaner who was facing foreclosure of a mechanic’s lien for improvements made to her house by fraud. Before suing, the contractor removed the improvements. The foreclosing contractor  received payment in full from Southern California Edison, and was prosecuting the foreclosure to get the money for utility. I filed a cross complaint against both the contractor and So Cal Edison. When trial commenced, I succeeded in getting the foreclosure suit dismissed and moved into the plaintiff’s chair on my cross action. My client had only $15 in medical specials because she could not take time off work to go to the free clinic for more medicine. The jury awarded $450,000 against the cross defendants.

What Are the Steps to Becoming a Trial Lawyer?

I shared these two examples for four reasons: 

First, everyone is nervous and afraid of trial. If you’re not afraid in your first trial (in your first 20 trials) then you don’t care for your client and you have the wrong case. Fear tells you that you are alive. Fear tells you that you want to do well. Fear tells you that you care for your client and the result.

Embrace your fear. Walk toward it, wrap your arms around your fear. As soon as you embrace and acknowledge fear, it goes away. Fear is like a dark secret that cripples you. You are afraid someone will learn your secret. You hold it close and agonize over it -- until you make public the secret you fear to reveal. When your secret is known, it no longer has control over you.

Second, if you truly care for your client and his or her case, the jury will see that your client is worthy of their help, because you cannot hide how you feel from the jury. You don’t have to vouch for your client or their case, the jury will feel it as you present your case. In my foreclosure case our central damage component was emotional distress. I had no experts. No fancy psychologist was going to take the stand, no doctor was coming to testify. Shirley could not afford to visit a doctor much less employ one for trial at $5000 for a half day. All I had was were lay witnesses: three women Shirley cleaned house for, and Shirley's twelve-year-old son. I started plaintiff’s case with three rather toady women telling the jury about Shirley, and how honest she was, and how they had noticed her crying while she worked at their houses. One of the women was the wife of the litigation partner in my firm. She told her husband, "You will take this case. You will help Shirley." Of course he assigned the case to me as the junior attorney in the firm.

I put each of those women on to show the jury that Shirley was worthy. I ended the case with my last witness, Shirley’s twelve-year-old son, who was the greatest witness I have had in almost 200 trials. He wasn't articulate nor particularly intelligent, but he loved his mother and he took the stand in the innocence of youth to tell his story.
He lived with his mother and two brothers in a small house in the barrio, but it was his family’s house.

I call him to the stand. I ask, "Are you afraid?"

He looks up at the judge then at the jury and says, "I’m really scared."

I ask, "Who lives in your house with you?"

He answers, "It’s only me, my mother and my two brothers."

"Tell us about your brothers." The defense objects at this point. The judge overrules the objection as bearing on the credibility of Shirley’s emotional distress at the threat to take her home and leave her homeless with three sons.

"There’s Juan who is ten, and Luis who’s six. Luis is special."

"What do you mean?"

"Luis is our baby and always will be. He has downs." At that, tears fill my eyes. The examination becomes emotionally difficult for me, because my mirror neurons kick in and are mirroring the jury’s response.

"Tell me about your mother before 1982."

"She was always happy and does everything for me and my brothers. She’s my mom."

"Did you notice a time when that changed?"

"Yes, but my mother never said anything."

"How did you know then?"

"Well, every night my mother came to our bedroom. All three of us boys slept in one room and mother slept in the other bedroom. She talks to us every night, then we’d have prayers. She tucked each one of us in, kissed us good night, then closed the door. Every night I heard her go into her room. Every night I heard her through the wall crying. Every night she cried."

"Did you know why she was crying?"

"Not until two weeks ago when you came to our house to meet me and my brothers. When you told me why you were there and what these people [he pointed at the defense table] were trying to do to my family I knew. She started crying at the time you said the suit started. She was crying for our family."

"No further questions of this witness your honor." The defense tries to cross examine my star witness. I figure the jury assessed $10,000 for each question they asked trying to discredit my 12-year-old superstar.

My point, don’t be afraid to be emotionally honest with the jury. If you are feeling something, let it show. You must learn to stand naked before the jury, hiding nothing and be absolutely honest with yourself and your jury.

Third, read the evidence code. It is very short. I am surprised by the number of attorneys I encounter who have never read the evidence code, much less the code of civil procedure. Those are the tools of our trade. You should resolve right now, even if you don’t have a trial on calendar, to read the evidence code, the rules of court, and the code of civil procedure. You will gain a lot of confidence by knowing you've done something your opponent has never considered.

Finally, recognize that it does not take that much to answer, "Ready." You need a witness list, an exhibit list, a short summary of the case for the judge to read during jury selection, jury instructions and a verdict form. Each of your exhibits needs to be marked. That’s it.

Answer "Ready," and Just Do It.
All you need to do to be a trial lawyer is decide to go to trial, then care for your clients and care for yourself. You will find doing so makes you invincible in trial. You will not win every case, but you will love fighting the fight for clients you love.


Check back each Friday for my posting of new installments of Young on Trial.

I have published two small books to help the ordinary person with employment issues. They are for sale at for only 99 cents each. One is called "Fired!" and the other is called "I Quit My Job!" Please refer anyone who could benefit from direct answers to employees’ questions during difficult times.

Until next Friday, thank you for reading.

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