1. Go to trial whenever it makes sense – and don’t look for ways to decide it doesn’t make sense.
2. Be honest.
3. Prepare thoroughly.
4. Don’t let your adversary’s tactics bother you.
5. It helps to be smart, but it is not crucial that you be the smartest guy in the room.
1. Go to trial whenever it makes sense. I list this first because it is the most important. The word gets around, and frankly, experience breeds confidence. Your confidence is contagious – and it can afflict your adversary with the contagion of doubt. Nowadays, even though many of us have a national practice and don’t see the same lawyers but once or twice in our career, people find out that you are someone who tries cases. Being known as a “trial lawyer” rather than a “litigator” is immensely valuable; in fact, it is the most valuable tool in the toolkit when it comes to striking fear into the heart of your adversary. The only way that happens is that you not spend the last few weeks before trial trying to create a settlement. Discuss settlement early, make a fair offer, and then forget about it, or leave those discussions to others. Not only does your personal involvement in belated negotiations send the wrong message to your adversary, but it consumes valuable time that you should be devoting to trial prep. Assume you are going to trial from Day 1 and work towards that end. And remember, as my friend and mentor Joe Cheavens often said, “Being ready for trial is just a relative term.” If you are comfortable with that axiom, you’ll get to trial more often, and the other side will know it.
2. Be honest. Most of us are basically honest people, but human frailty (not to mention client pressures) can affect us all. Temptation is always out there. Just as a simple “f‘rinstance,” almost every client document collection includes emails that we would rather not see and certainly don’t want to produce. We’d love to label them as irrelevant or privileged so we can avoid producing them. And the client may seek to pressure us in that direction. Take a pass; produce the documents unless it’s not anywhere near a close call. Over time I have found that almost no document is ever that damaging, and often those documents leak out some other way, leaving everyone involved in withholding the document the first time around embarrassed or sanctioned. Honesty makes sense. Why does that strike fear into the opponent? Over the long haul, they learn — and the judge(s) learn — that if you say something, it is bankable. Eventually that pays off, even as soon as pretrial results at hearings or over contested issues. Once you start that ball rolling, and particularly if your opponent knows deep down that he/she has not been as straightforward as you, it creates a crack of doubt in the armor of your adversary’s self-confidence. (Note to self – this doesn’t work as well against sociopaths who end up on the other side, but fortunately, there aren’t that many of them, at least not as many as we often think.)
3. Prepare thoroughly. Thorough preparation breeds confidence in yourself and your case and (ultimately) insecurity in most adversaries. And I don’t mean just reading the “hot documents” provided by some other lawyer on your team. Recently I had a hotly-contested trade secrets case (aren’t they all?), which led to multiple hearings with a tenacious, clever, articulate adversary whose modus operandi was always to oppose. I suspected that he was taking contradictory positions on issues, just to win discovery battles, so I started to read the transcripts of prior hearings, and also to review prior motions discussed at those hearings (including email exhibits), even though the motions and issues seemed different. It was pretty boring, but on at least two occasions, I was able to cite to the Court prior statements by my adversary that were 180 degrees different. Once the weapon of inconsistency was taken away from him, he was somewhat flummoxed at hearings and during trial, and more halting in his bloviation, for fear of which contradiction I would next point out. Also, it never hurts to remind a Court of a similar ruling it made in a prior case, or a similar jury charge given by that Court in the past, or any of the myriad ways you can communicate in open court that you know more than your adversary about matters that affect the ultimate outcome. That unnerves adversaries.
4. Don’t let your adversary’s tactics bother you. As a younger lawyer, I was often amazed (and upset) that not everyone comported themselves like Atticus Finch (and I naturally flattered myself that I did). It preyed on me, since I felt that cornercutters would always enjoy a tactical advantage, at least in the short term. While I learned to take precautions against some of those stratagems, I couldn’t anticipate them all, and I couldn’t shake the idea that I would always be at a disadvantage against people with fewer scruples. One day, as I was complaining to another friend and mentor Bill Slusser about someone on the other side who seemed to have less than a nodding acquaintance with the truth, and was pouring out my fears, Bill said, “Yes, but won’t that make victory all the sweeter?” I realized that there are some things I could not control, and the only way to prevail was to fall back to my other strengths…especially 1, 2 and 3 above.
5. It helps to be smart, but it is not crucial that you be the smartest guy in the room. Most of us think we’re pretty smart, but there are always people who are smarter, quicker, faster on their feet, etc. If you really are smarter, the other side will figure it out and it will concern them. But what if you aren’t smarter (and you should always assume you aren’t)? Go back to 1, 2, 3 and 4 and if you do, 5 won’t matter.
These are truisms, but as I have learned over time, the truisms are the things that are easiest to overlook.