Why Will Rogers should be every trial lawyer’s mentor

Ten reasons why trial lawyers should pay attention to this humorist’s keen insight into human behavior

2016 July

When you hear the name Will Rogers, it is usually relegated to a mental footnote of a homespun humorist who spoke to his generation close to a century ago (noted exceptions: people who go to the Will Rogers State Beach or the Will Rogers State Historic Park in Southern California).

From the period of World War I until his death in a tragic plane crash in 1935, Rogers was one of the most famous and beloved people in America. Starting out as a cowboy doing rope tricks, he became a humorist, a movie star, and a columnist published in newspapers throughout America. He became the highest paid movie star in the early 1930s, acting in 71 films. He utilized all the cutting edge technology available at the time, in the media of radio, movies, and air travel, during the 1920s and ‘30s.

Sometimes described as an heir to Mark Twain, Will Rogers also was a prolific writer and lecturer, a political commentator and a public figure. He always stayed in character as the cowboy from the South who explained the news with simple phrases for the Common Man. His life was turned into a lavish musical in 1991, titled “Will Rogers Follies: A Life in Revue”, which told his life story from the point of view of his time as a star in the Ziegfeld Follies, but only scratched the surface as to the impact of his personality, writings, and humor.

Will Rogers would be the perfect mentor to take − at least in spirit − to court, to every trial a litigator faces. As a judge, he has been an inspiration to me. The fact that his father was a Cherokee judge in the Indian Territory surely was a great inspiration to him as to the way he looked at life and listened to people. He was a voracious reader, reading ten newspapers a day, in search of materials for his humor. He was a prolific writer, so much so that his writings have been published by the Oklahoma State University in 22 volumes.

He elevated the intelligence of the public by always making them think, something every lawyer should hope to accomplish with a jury. His innocent but knowing look at the world contrasts to the cynicism that pervades our world today, particularly in the courtroom. His willingness to accept challenges, including flying adventures around the world to find stories to fill his newspaper and magazine columns, demonstrates a wonderful carpe diem approach to life. Exploring his words, Will Rogers can teach us how to be a better attorney, what to do and not to do in front of a jury, and how to live a meaningful life in the law.

Now, let’s move on to the first lesson.

(1.) Expert’s opinions should be limited

“Everybody is ignorant, only on different subjects.”

Every expert witness is generally only an expert on a few narrow issues. Often experts attempt to be experts on subjects in which they do not have the expertise, that go beyond the agreed upon designation (creating a Kennemur challenge), or out of hubris, simply not admitting that there is something they do not know.

Further, expertise is finite as it must rely on the quality and quantity of the information they receive in discovery. There is an expression that could summarize the theme in cross examination of most expert witnesses − the acronym of GIGO: garbage in/garbage out. If the information gathered was incomplete, flawed, or lacks credibility, any opinion based on it is vulnerable. (CACI 220 and 221.) If lawyers would use this general theme in attacking an expert rather than attacking on often irrelevant matters, jurors would be better equipped to truly evaluate the weight to be given to that testimony. Rogers reminds us when dealing with experts, remember to stick to the general theme that their information is limited by what they received and often, information not considered would change their seemingly fixed opinion.

Let’s move on to the most well-known saying that Will Rogers said:

(2.) Maintain a positive attitude towards the court, counsel, witnesses, and jurors

“I never met a man I didn’t like.”

The germ of this quote stems from the time when Will was to meet the Russian Marxist Revolutionary Leon Trotsky. He never had that meeting. He also never met Stalin or Hitler.  Rogers demonstrated through these words an attitude towards the world to always be open to people and try to find common ground. Both political parties embraced his gently mocking words, and the internet is filled with politicians (including numerous presidents) who were photographed laughing at Will Rogers’ speeches which gently but tenaciously poked fun at them. It is this attitude that has made him so beloved.

Examining his words and actions, it is easy to learn that Will Rogers combined gentleness, humor, and observations having the unmistakable ring of truth to them. What is plain is Will Rogers cared about the people he gently mocked and respected them as human beings with intelligence, feelings, and the ability to engage in some introspection. From 23 years as a trial judge observing countless trials, I have witnessed a number of lawyers who, when speaking to jurors, clearly did not care about them as human beings with their own set of beliefs, fears, and wants but only saw the jurors as people to briefly recruit for their case.

Being an officer of the court, there is an ethical line that we may not cross. Will Rogers often pointed out, that his jokes never hurt anyone. As lawyers, what we say can hurt someone in a profound way. If you find that your job as a lawyer becomes a series of missions to try to destroy other people, hurting them unnecessarily, think about Will Rogers and how he would have handled the same situation. He would always handle others with kindness, humor, and with the ability to look at things from many points of view.

(3.) Be an advocate who doesn’t lose perspective

“A fanatic is always the fellow that is on the opposite side.”

Many times at a case management conference I’ll ask the lawyers if they have met and conferred.  I often am told “there’s no point, there’s no possibility of resolution − this case will have to go to trial.” This is exactly what Will Rogers is talking about. Both sides automatically assume they are right, hunker down, and do not bother to discuss compromise, or anything else. They are right, the other side is wrong, and that settles it. Most of the time, the case eventually settles, but only after months of tortuous litigation that might have been eliminated had both sides been more realistic in the beginning. There are statutes that require meet and confers before case-management conferences (CRC Rule 3.724); discovery issues (CCP §§ 2025.450(b)(2), 2025.40, 2030.300(b), 2031.310(b), 2032.240, and 2033.290); demurrers (CCP 430.41); motions in limine (LASC Local Rule 3.57(a)(2)); jury instructions (LASC Local Rule 3.172(3)); ex parte applications (CRC Rule 3.1204 (b)(1)); and final status conferences (LASC Local Rule 3.25).

The real issue is the inflexible attitude of the lawyers that hinders movement. Many judges, including the author, rely through case law rather than statute to have meet and confer conferences prior to the filing of discovery motions, which results in eliminating the majority of potentially filed discovery motions. Are you fixed or flexible, at least to talk?

We need to look at our case from the other side’s point of view. Whether preparing the case for trial or for settlement purposes, it helps to see the other side’s point of view as potentially accurate. Maybe everything they say is wrong. More than likely, there are simply points of disagreement along with many points of agreement. Do not completely lose perspective, and be open to reevaluate your own case. Rogers’ advice would be to resist the temptation to close your mind just because the views come from the opposing side. Maybe they aren’t fanatics.

(4.) Always take the high road

“I’d rather be the man who bought the Brooklyn Bridge than the man who sold it.”

While litigation is adversarial, it should not prevent counsel from exhibiting the highest standards of civility and professionalism. What does that take? Generally, follow the rules, advocate for your client, and respect the court, the parties, and the jury. A more specific example – do not take unfair advantage of one side by sandbagging them with evidence that should have been produced in discovery. While this may provide a temporary advantage, it usually ends up being a Pyrrhic victory, which will later be undone by an even more prepared counsel, the jury, or after appellate review.

What about the extra step of candor? While we remember professionalism, what should become etched in the minds of lawyers, judges, and litigants is candor, self-deprecation, and scrupulous honesty even if it won’t strategically advance your case: The lawyer who returns documents unread that were privileged and inadvertently sent in discovery; the lawyer who admits that he or she misspoke about a precedent and corrects the record; the lawyer who candidly admits the case he or she cited was depublished or fronting contrary cases that might not have been readily discovered; the lawyer who admits that he or she was wrong. It doesn’t occur with frequency, but when it is does, it creates an unforgettable positive impression for that lawyer.

(5.) A trial lawyer wins by making the fewest mistakes

“Give a man enough rope and he’ll hang himself.” – American Proverb

The above quote is a proverb that captures the spirt of Will Rogers and his love of roping so that Betty Comden and Adolph Green crafted the words with the music of Cy Coleman into a song in Will Rogers Follies: A Life in Review titled “Give a Man Enough Rope.”

Lawyers prepare for trial with a goal to win by their own efforts but, in spite of these lofty aims, the outcome of a trial is more often decided by the lawyer who makes the fewest mistakes. Will Rogers would observe politicians reveal themselves through their mistakes and that would become the basis for the material in his performances. A jury sits in judgment of the lawyers like Will Rogers would with politicians, having a front row seat to either see brilliance or something less than that in any trial.

There are numerous examples of lawyers or witnesses, in their zeal to win, hurt themselves to their detriment by overreaching. If you listen carefully to an opponent’s opening statement, lawyers will often overstate their cases and what they say they will prove bears little resemblance to the trial they would later present and witnesses will often boast about matters previously excluded by motion and thus “open the door” to evidence the lawyer fought so hard to exclude.

For example, in a criminal case, the lawyer has received a ruling excluding prior felony convictions. On the witness stand, the defendant boasts during cross examination that he has never been to prison and he doesn’t plan to go now. In fact, he has served time in custody and thought he was shielded from his perjury. He wasn’t. He has now opened the door for the prosecution to introduce the felony conviction. Further, Evidence Code section 356, dubbed the rule of completeness, prevents one side from “cherry picking” parts of a statement or writing because it allows the other side to introduce those clarifying, an occasionally devastating retort to the proffered evidence.

From a more recent presidential source, former President Bill Clinton analogized golf to life when he said “Golf is like life in a lot of ways − All the biggest wounds are self-inflicted.” In trials they call it something else, either “opening the door” or “invited error.” Either way, it should put you on high alert to pay attention to see whether the other side opens that door, and take inventory that you don’t make those errors yourself. Remember, the lawyer who wins a trial is the one who makes the least mistakes. Further, since jurors expect minimal competence from lawyers, when either side makes a mistake, it becomes glaring, remembered, and often hurts that side. As a trial lawyer who wanted to improve, I would write ten things I learned about each case. I still do this as a judge...

Will Rogers watched from the sidelines and waited for politicians, statesmen, and other world leaders to reveal themselves, both good and bad. Lawyers should do the same thing. Being a successful trial lawyer can also be accomplished by capitalizing on the mistakes of the opponent as much as any perceived “brilliance” you might put forward.

(6.) Plan your legacy

“You must judge a man’s greatness by how he will be missed.”

I see so many attorneys who try their cases in a scorched earth manner − win at all costs, not caring how the court will view you − get what you want from a jury by saying whatever you can to convince them, and freely throw your opponent under the proverbial bus at every available opportunity. Sometimes I see lawyers acting like they are brusque tourists in a foreign country; they will never have to return so they do not feel the need to make a good impression. One should act like you are writing your history day by day, so that when you retire, you will look back at a career that was deliberate, creative, and respectful of your own legacy. If more lawyers realized that the legal community is small, memories are long, and every negative action done is remembered, they would take stock and think about the future they are creating.

One of the devices to help law students or new lawyers who have aspirations for the bench in considering the future is to have them assume that everyone they work with will evaluate them in the future when the governor considers their suitability for the bench. In addition, assume that each juror that you ever argued a case in front of will be found later and will write a detailed evaluation of your conduct in trial.

Many lawyers have responded that they have no goal other than the success of their case and their client. I urge those lawyers to reconsider and look, as Will Rogers did, to creating their legacy beyond perceived success to something lasting − professionalism, civility, openness, honesty, and − yes, an outstanding advocacy for his or her client. These ingredients of excellence are a legacy which you can all start now.

 (7.) Be the one lawyer in the courtroom the jury understands

“The minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer.”

The goal of law school is not to learn to argue and write in legalese that is only understandable to a select group of elitist lawyers who believe obscurity translates into brilliance. It doesn’t. Law school should teach a law student to communicate and convince jurors not by using dazzling words but through convincing arguments the jury can understand. An ideal example of this is the change in the wording in the jury instructions when the CACI and CALCRIM instructions were introduced and endorsed by the California Supreme Court. The language is clear, the examples are plain, and there appears to be a concerted effort to come up with simple language that any juror can understand. People want to hear from lawyers that don’t sound like lawyers. Even judges appreciate the effort made to break things down into their simplest terms.

As a judge, I have noticed that the lawyer who speaks to the jurors in legal jargon quickly loses the attention of the juror. Rarely do I ever see those jurors later make the effort to understand the lawyer, having been turned off by the word barrier. The lawyer unwittingly sabotaged their chances for their clients. Some lawyers mistakenly believe that the ability to speak legalese is necessary, shows intelligence, or impresses. It doesn’t. In closing argument, I frequently watch to see if the jurors wrote down notes of anything the lawyers say. Frequently, the lawyer who speaks down to jurors gets the least amount of notes from the jurors.

Finally, the move for plain English is most important, but frequently ignored, in the special verdict form. This is the single most important document in a trial and often the last looked at, approved, and given document in the case. The special verdict form should be in plain English, crystal clear, and have logical steps to follow. Often they are put together at the last minute, with lack of careful review, and results in a special verdict form that resembles an obstacle course that has no logical beginning or ending, making Alice in Wonderland’s journey look like a walk in the park.

Lawyers often make the mistake of believing that leading questions on direct examination will enhance their case because all points sought are being made through a rapid succession of “yes” answers to leading questions. In fact, the opposite occurs. Since the jurors don’t know anything about the witness because they haven’t been able to explain their own answer in their own words, the points counsel believe they made, were not made to the jury. Having a witness explain in their own words, through non-leading questions, what happened, goes a long way to connecting to a jury and avoids being considered to be answering “yes” to every question the lawyer has decided will prove their case.

I have presided over a number of lengthy civil trials and there is a defining moment in a trial that should cause a sea change in the behavior of the lawyers. Many times, after endless questioning of witnesses in an attempt to yet again “gild the lily,” I will receive a note from a juror that will ask “why do the lawyers keep repeating the same thing over and over again? Do they think we’re stupid? Can you please get them to stop? We got it the first time.” This juror’s sobering message replicates the spirit of Will Rogers when he challenges lawyers to surprise him by not talking and writing like a lawyer.

(8.) If you can’t saying anything nice…

“The only time people dislike gossip is when you gossip about them.”

The Golden Rule is something generally kept out of trials because it usually signifies the impermissible practice of asking the juror to place themselves in the position of their clients to evaluate the case, thereby losing their objectivity. The Golden Rule I am talking about is simply how to treat the people you work with in court and throughout litigation. Litigation is a high pressure situation which is artificial in the sense it is adversarial, it has many rules that appear inflexible, and it requests cooperation from sides that are meant by the rules to oppose each other. Rather than taking it in stride, often lawyers will speak ill of the other side in declarations and emails that often find themselves attached to an angry ex parte motion.

On the record, lawyers frequently call each other sleazy, liars, and lawyers that should be reported to the State Bar. Recently, I met a lawyer from New Zealand who said that New Zealand has a court rule that each side must address his or her opponent as “my learned friend” which, though somewhat artificial, at least raises the bar in the expectation of the highest standards of courtroom civility.

Rarely do I see these types of cases settle. Will Rogers spoke volumes when he said “never pass up an opportunity to keep your mouth shut.” He never spoke ill of others and he is still remembered. What better way for a lawyer to be remembered – as someone known for their civility and professionalism?

(9.) Find your priorities in law (and in life)

“Too many people spend money they haven’t earned to buy things they don’t want to impress people they don’t like.” Will Rogers found his passion in life through balancing what he loved, his family, with his second great love, his life’s work, to spread truth sprinkled with humor that speaks to each of us in a way we can relate. A lawyer can do the same and give back to others through his or her legal knowledge. Whether doing pro bono work or getting involved as a mentor to middle and high school students, the law provides each of us the opportunity to make the world a better place.

Will reminds us that there is more to life than material possessions. His words on what constitutes success have found their way onto my blotter on the bench: “If you want to be successful, it’s just this simple. Know what you are doing. Love what you are doing. And believe in what you are doing.”

Every day, Will Rogers inspires me to try to do more to help others.

(10.) Jurors respond to people, not speeches

“People’s minds are changed through observation and not through argument.”

I doubt anyone has missed a creative writing class where the professor said, “show, don’t tell.” It always seemed like a vague lesson, but I came to understood it as the need to reveal character through action rather than description. In trials it is as important as it is in literature. Every trial is a human drama with real people. Those individuals must be revealed by them showing themselves impermissibly, revealing their actions rather than simply agreeing to the conclusions suggested by the lawyers. Many witnesses’ stories, seemingly ignored on direct examination, are ironically revealed to a greater extent on cross examination. The witnesses should be revealed in direct examination first. That is the best opportunity to truly have the witness introduce themselves, establish their credibility, and explain their actions without being restrained through leading questions.

Conclusion

Will Rogers has had an impact on my life and on millions of others by his writings, his humor, and his keen insights into human behavior. I have but scratched the surface of the riches to be found in his writings. I urge you to take Will Rogers with you in your next trial as an invisible mentor.