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How can a young lawyer live up to the ideals and traditions of the noblest of professions? The law is the social fabric. Anarchy and disintegration of society are the product of the failure of law and its institutions. Our country has worked so well under law that Americans, including young lawyers, enjoy the luxury of forgetting this truth. Yet in that truth lies the most useful “tip” a judge can give to young lawyers. I ask my young lawyer readers to inquire of their mentors and peers, who are the most respected members of the bar in Philadelphia, why those individuals have achieved a pinnacle of professional respect. ROLE MODELS Those who take this challenge will find that there are many lawyers who have achieved significant financial success, and many others who are feared in litigation, but the preeminent members of our bar, those who have achieved the admiration and respect of their peers, are those whose professional careers and whose character embody the dual roles of counselor to clients and officer of the Court. Those attorneys who command universal recognition and respect do so because they have coupled an understanding of — and respect for — their obligations to the public with professional excellence. These outstanding attorneys, and we are blessed with many, have achieved recognition in every field of law — criminal, personal injury, estate planning, commercial litigation — because of their character and their appreciation of what it means to be a lawyer. How can young lawyers learn to conduct themselves in their profession? By determining how these eminent practitioners go about their professional lives, by understanding what is it about an attorney that causes a courtroom to silence and the judge to listen carefully when he or she approaches the bar of the court. The hallmarks of professional success can be achieved by young or old; the path is the same for the successful practitioners in every field, and the path can be learned. The path to professional success is found through diligence, integrity and understanding. HARD WORK Those readers seeking easy pointers or hoping to learn how to “get by” in a courtroom have already moved to reading an article about a 120-year prison sentence or a $2.4 million verdict; I wish these former readers financial success. More, I hope that as they mature, they come to appreciate that there is more to professional life and more to life itself than financial success, easy fixes or transient amusements. To those in search of something more I offer this advice: Everyone has heard “success is 10 percent inspiration and 90 percent perspiration.” While true, this is not a particularly useful homily for the associate who is handed a file one hour before a hearing and told that it is a simple matter. I will examine what “90 percent perspiration” means and then try offer some suggestions for what any attorney needs to fall back upon when there is insufficient time for perspiration from hard work, yet perspiration freely flows from anxiety. KNOWLEDGE OF THE LAW What differentiates law from trades such as carpentry or plumbing is that trades obey the laws of nature from which there is no appeal. The practice of law is artificially controlled by promulgated and written rules, practices and precedent. Every case in every jurisdiction is governed by written rules of procedure, written rules of evidence and codified law. Every jurisdiction has its own local rules and customs, and all but the newest judges have individualized, ingrained modus operandi. All of this is known or knowable. An attorney who walks into a courtroom without knowing the relevant procedural rules, the procedural posture of the specific matter in hand, the general practices of the jurisdiction and the idiosyncrasies of the specific judge is blindly walking a path above a chasm. The height of the chasm is determined by the difficulty of the matter in question; and the width of the path, by the grace, good humor and tolerance of the judge, that day. There is also no substitute for knowing the rules and caselaw. There is no substitute for knowing the procedural posture and factual history of the specific matter. There is nothing as impressive as the attorney who accurately points the court to the appropriate rule and can summarize the pertinent part. There is little as grating as the attorney who does so by pedantic citation. But even an onerous recitation is a significant improvement over the attorney who pretends to know the rules but makes them up out of whole cloth or the attorney who candidly admits to having no idea and has not bothered to look. The secret to learning the rules is no different than the secret to proficiency in any activity. The secret is approaching each experience as an opportunity to learn more and become more generally proficient. To accomplish this, an attorney must adopt the attitude that every experience is an opportunity to expand one’s reach. Whenever possible, instead of preparing only for the specific issue involved, take time to stretch your perspective and learn around that limited issue. After you have homed in on the rule which governs the specific question — for example, Rule of Civil Procedure 4019(a) — and after you have quickly read the pages of Goodrich-Amram that analyze the rule and have read the one or two cited cases that seem most significant — and printed them out for your file, should they be useful in Court — take an additional five minutes to read 4019(b) and (c) in both the rule form and in Goodrich-Amram. The insight gained through understanding (b) and (c) will in fact help you in your argument concerning (a). But even if this is not the case, the next time you deal with Rule 4019 you have a better base to start from. This approach to preparation requires mindfulness of a broader perspective and your broader goals. What is this profession all about? How can I excel? What are the premises and understandings that are at the core of this confusing plethora of details? The more frequently you approach each opportunity as a tool for gaining insight and developing core understanding and principles, the easier it becomes to learn the specifics in each different area of law. More importantly, an understanding of the core and premises in any body of law become a central resource out of which the attorney can draw answers even for unanticipated problems. What differentiates the truly outstanding from the technically competent is the simple fact that the truly outstanding lawyer draws from a central core of belief and understanding of law. This central core can come only from years of experience. But it doesn’t necessarily come even with years of experience. You can begin your career as a journeyman and thirty years later end it as a journeyman lawyer; most do. Core values can come only from a conscious effort to reach appreciation. UNDERSTANDING OF ‘VICTORY’ I define victory for a lawyer as “the best possible result the client can achieve under the circumstances, with due regard to professional obligations.” A lawyer cannot change the basic facts. A lawyer should not attempt to change testimony about those facts. A lawyer almost always arrives on the scene after critical events have occurred. I am reminded of the indigent defendant who appealed his conviction on the basis that he did not have appointed counsel at a critical time in the proceedings, the time when he committed the crime. Victory in our profession is not an absolute; it is relative concept. Avoid battles you can’t win if possible. Analyze the battles that you must be in and determine what can be achieved. Think about what is needed to win the war. Napoleon won every battle on his way to losing the war in Russia. At the beginning of a trial, think through the process from beginning to end. What is necessary to win the verdict? What is irrelevant to victory? Evaluate the examination and cross-examination of every witness. What is it that needs to be established with each? What is the minimum that must be accomplished? What is the maximum can be hoped for? What is the risk in attempting to go from minimum to maximum? When do the risks outweigh the potential benefits? This analysis should be conducted on both macro and micro scales for every court appearance, trial, hearing or argument. Such preparation creates a consciousness of forethought that enables you to make proper “spontaneous” decisions in court. The one certainty of the courtroom is this: something unexpected will occur. To perform that analysis, you must clearly know the elements needed to establish your case or defense. What is the goal? What are the elements of proof that you need to achieve that goal and how are you going to prove it? What witnesses prove what? What document demonstrates what? How do I get the testimony, opinion, or document admitted into evidence? In an ideal world this is done before the pretrial conference. No witness takes the witness stand entitled to be believed, and every judge and jury in every case begins knowing nothing about the case. The “fact” that something is “true” does not make it proven. The fact that the document exists or has been found in discovery does not make it admissible in evidence. Everything in court must be proven by witnesses, authentication or stipulation. Before walking into court you must determine what you need to establish and how you will establish it. This general proposition is true for the full-blown jury trial, the bench trial and even for every oral argument. It is also true for every written motion. Every day, inexperienced attorneys come into court without ever having answered these basic questions. In answering these questions, don’t adopt more of a burden than is necessary. If you need to prove fraud, because fraud is needed to obtain punitive damages, do so. But if you get the same damages by proving negligence, do you need to accuse the defendant of fraud? As a legal matter, fraud requires proof by clear and convincing evidence. As a practical matter, if you fail while overreaching, you may fail entirely. Before you shoot, consciously decide on the target. You can make this conscious decision only if you have expired the perspiration long before entering the courtroom and have determined what the facts are, what the procedure is, what the rules are, what the law is, what the forum is, and who is determining your fate. There will be times when you learn things the hard way. Mindfulness, perspiration and finding appropriate models to emulate can result in easier learning as well as better results for your clients throughout your 50-year career. The single most important thing an attorney brings to any appearance before a judge is her reputation. Build your reputation as an honest, thorough and serious practitioners. Cherish that reputation and the fact of who you are will continually benefit your clients throughout that career. Stay mindful that you will be against the same opponent again and before the same judge again. Every lawyer and every firm has a reputation; make yours excellent from the beginning. Judge Mark Bernstein is a judge on the Philadelphia County Common Pleas.

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