Try more cases

Trying more cases increases the value of the cases you settle, and when you win it is p-o-w-e-r-f-u-l

2015 July

Trial lawyering for the people is a noble and patriotic profession.

The founding fathers of this country understood how important a judicial branch is and jury trials are to a civilized and productive society. Through Article III of the Constitution, the Judicial Branch of the United States government was created, as the Preamble indicates, to serve and benefit the people of this nation. The right to a jury trial in qualifying civil cases was so important that it was written into the Constitution via the Seventh Amendment.

Of course, democracy is a form of government in which all eligible citizens participate equally, either directly or indirectly. Civil trials are direct democratic action by the community and trials help keep our democracy alive.

Trying your cases gives members of the community the opportunity to do one of the most important things they will do in their lives – to sit as the arbiters of right and wrong, and to render justice in an unjust situation. Sure, in voir dire few people are happy to have received their Jury Summons. But, in my experience by the end of the case, almost to a person, jurors feel they have just participated in an incredibly important, sometimes life-changing event by having served.

You have the opportunity to shore up our democracy, to reinvigorate it and give our citizens a meaningful experience, which was guaranteed for them in our Constitution, when you try your cases. George Washington and the other founding fathers worked incredibly hard and sacrificed a great deal, in part to ensure there was a judicial system in this country. You rightfully should be incredibly proud of the contribution you make to our democracy when you try your cases − trial lawyers are patriots!

Trial lawyers have courage

I have galloped up and down mountains on horseback, ridden 200 miles on horseback through the Masai Mara in Kenya, ridden among a stampede of 50,000 wildebeests and zebras, felt my horse shaking beneath me at the sight of a bachelor herd of elephants, and heard lions around my camp at night hunting the horses that carried us across the Mara. These were terrifying and thrilling experiences that required courage, but for me they do not compare to what I go through when trying cases.

Many lawyers never try a single case. Others might try a case or two, but no more. There are many reasons why lawyers don’t try cases including fear of personal failure, fear of failing the client, fear of financial ruin, concerns about the crushing workload, etc. I understand all of these concerns and fears because many of those thoughts have gone through my mind. You can rest assured that these and/or other fears are also in the minds of your fellow trial lawyers when they are trying any given case.

Fear is natural. But fear is what gives us the opportunity to be courageous and trial lawyers are courageous people. We don’t let the doubts stop us from fighting for what we believe is right. Instead, we use the doubts or fears to propel us to work harder to win. Courage, determination and faith yield victory.

Everyone starts at the beginning – we each have our first trial. We all lose cases, and we learn from our losses. But, we keep our faith in other human beings’ ability to see right from wrong, to be fair and to do the right thing. We are determined to show the jury what they need to see to make the right decision. And we have the courage to step into the ring, keep fighting and keep working no matter what.

Wear your faith, courage and determination on your sleeves – they are badges of honor about which you should be proud.

Trials restore dignity

Everything that is worth doing requires sacrifice and hard work. A trial demands sacrifice and hard work from the attorneys and the jurors, among others. But as the trial attorney, the work is incredibly rewarding when you are fighting for what you believe in. And at the end when your client wins, something magical happens which is one of the most powerful outcomes of the trial process.

After a long, hard fought battle in a righteous case, when we win and the jury delivers justice for our clients, dignity — one of the most important components of self — is restored.

In the book Unbroken: A World War II Story of Survival, Resilience, and Redemption, author Laura Hillenbrand wrote about Louis Zamperini’s life as a juvenile delinquent, turned Olympic runner, turned Army bombardier and finally, turned POW in Japan. Zamperini and his fellow POWs were mercilessly brutalized by their captors, which broke many men. In the part of her book discussing the brutality and its effect on many, Hillenbrand wrote:

Dignity is as essential to human life as water, food, and oxygen. The stubborn retention of it, even in the face of extreme physical hardship, can hold a man’s soul in his body long past the point at which the body should have surrendered it. The loss of it can carry a man off as surely as thirst, hunger, exposure, and asphyxiation, and with greater cruelty. … This self-respect and sense of self-worth, the innermost armament of the soul, lies at the heart of humanness; to be deprived of it is to be dehumanized, to be cleaved from, and cast below mankind. Men subjected to dehumanizing treatment experience profound wretchedness and loneliness and find that hope is almost impossible to retain. Without dignity, identity is erased. In its absence, men are defined not by themselves, but by their captors and the circumstances in which they are forced to live.

As the trial lawyer, you receive a dignity deposit from the jury for being a fighter on behalf of people. Few in society are regarded this way, and it feels terrific to know that you are recognized for your capacity to fight for justice for others.

But the greatest dignity deposit is saved for your client. The original harm inflicted on her, the litigation and trial processes are devastating, life-changing negative events. With these events come the loss of dignity and self-esteem, whether in whole or in part. At the end of the trial, in that moment when the jury finds for the plaintiff, they restore her dignity by communicating that she matters, this never should have happened, we have power to hold people responsible for what they did to you, we heard you and you matter.

Bam. It’s done. The dignity is back and it is p-o-w-e-r-f-u-l when this happens.

On the other hand, rarely do I feel that a terrific settlement for my client ever even approaches the dignity that is restored when we try and win a plaintiff’s case.

Trying cases increases the value of your other cases

 When you show that you will try cases, the settlement value of your other cases increases because that value is based on risk. Risk is assessed in part based on whether you are willing to try your cases because a jury trial is a very costly and risky proposition.

A corollary is this – the value of your cases suffers when you don’t try cases. You are not as big a risk, therefore your cases are worth less.

Be the best trial lawyer you can be

There is not time or space to address all of the aspects of becoming the best trial lawyer one can become, but, I want to present a few basic points.

Try your best cases. You are more likely to get a big verdict and that is all-around good.

Be the best, most authentic person you can be. Everyone says it, but it bears repeating and working on until we figure out what it means for each of us – be yourself. The genius of the trial process for plaintiffs’ lawyers lies in the human connection. We are much better able to connect with others, to be likeable and convincing when we are happy and comfortable in our own skin. It’s well worth the effort to get there.

Love your client and spend a lot of time with him or her. I mean spend a lot of time with your client. Go to their home, spend days getting to know them, spend time with those who love him or her and find out what makes them special. For example, if you have a client who was injured through an accident, spend 24 hours or more with him or her in your client’s home, doing what your client does all day and night. Learn what it is like to be your client. Put yourself in your client’s shoes, literally. By doing this, you will have a completely new perspective on your client’s injuries and you will learn to love your client. If you love your client, the jury can love your client. If you know what it is like to live with the pain, the problems and inconveniences your client lives with, you will be much more effective in trial.

Prepare like your client’s life depends on it. In most of our cases, our client’s future does depend on the outcome of the case. Prepare so that you have no regrets and you know you took no shortcuts.

Learn how to do your own focus groups and then conduct them. Focus groups include issue-finding groups, issue resolution groups, mock trials and other approaches. David Ball has a great book on this called “How to Do Your Own Focus Groups.” If you are doing a mock trial, do what he says – make the defense argument at least as powerful as the plaintiff’s presentation, if not more powerful. Otherwise you are wasting your time because you will get the equivalent of a false positive.

You can get a pretty good cross-section of focus-group participants on Craigslist if you pay $50 for four hours and provide a meal. If you are not comfortable conducting your own focus group, ask a knowledgeable friend to help or go hire someone to facilitate.

Practice handling jury selection before you ever go pick the jury. Brainstorm how to approach the tough issues in your case. Do this with colleagues and/or by using focus groups and a jury consultant.

Learn how to tell a story. Read Carl Bettinger’s “Twelve Heroes, One Voice”, attend story telling festivals or classes, listen to “The Moth” on public radio (true stories, told live), and learn how to lead and inspire a jury through telling a proper story and showing the jury how they can be the heroes.

If you don’t already do this, go watch others try their cases. It’s amazing what you can learn from watching a trial done poorly and from a trial that is well executed. It’s one of those things – you really do know good and bad when you see them. Also, go watch jury selection and trials in your judge’s courtroom.

Finally, I want you to know that you are a treasure. Only you can try your case the way you will try it, so please, try your cases!

[Editor’s note: This essay was originally presented at the CAALA Annual Convention in 2014.]