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Law school seems to be all about litigation. You take classes in evidence and civil procedure. Your principal source of information on the law is the casebook, which contains excerpts from judicial opinions in litigated matters. Most often, you write at least one moot court brief, and you get to argue a moot appeal. Does that make you a litigator? Not exactly. What you must learn in the first few years of litigation practice certainly equals whatever you may have learned in law school. Most of that learning, moreover, is the behind-the-scenes kind of practical understanding of the litigation process that really cannot be taught well in law school. But to help you along, here are some of the basic lessons likely to be learned in the first few years of practice as a litigator — and don’t forget: Seek out experience and advice from senior litigators in these and other practical areas of litigation. THE CALENDAR RULES Virtually everything in litigation comes with a date or deadline attached. Pleadings must be answered by specific dates, discovery responses are due by specific dates, and court conferences and hearings have specific dates. The list goes on. And, in the rare instance where there is no deadline or specific date for an event, your adversary may invent one; for instance, your adversary chooses a proposed date for your client’s deposition or demands that you respond to a settlement offer by a specific date. Again, the list is endless. Litigators spend much of their time figuring out what dates should be attached to specific events. They consult rules (such as the Federal Rules of Civil Procedure, the local rules of the district court and the rules of the judge). They also spend significant time negotiating with adversaries to set, and modify, deadlines. Often, the first contact with an adversary in litigation is to request an extension. For the junior litigator, the habit of thinking about schedules and deadlines must become ingrained as early as possible. Often, it falls to the junior litigator to keep track of schedules and deadlines: arranging the deposition schedules of witnesses, for example, or making sure that pleadings or motion papers are served and filed on time. The junior litigator who assumes that “someone else” is keeping track of schedules is making a mistake. At a minimum, a junior litigator should be certain of what the dates are for every significant event in a litigation. If there are parts of the litigation schedule that are not within a junior litigator’s ken, such as the schedule for planned settlement discussions, it is generally a good idea to confirm with senior litigators some basic outline of how such schedules might affect the litigation (as in, “If the case does not settle by Oct. 1, then we will have to proceed with aggressive discovery in November and December”). The junior litigator who competently performs the timekeeper role will add real value to most litigation teams. Attention to schedules is one of the many details that are important in litigation, and for which senior lawyers will generally be grateful. In fiction, most court cases are won or lost on the testimony of witnesses; for instance, the surprise witness, the witness who breaks down on cross-examination, or the witness whose heart-melting testimony sways a jury. In reality, most litigation (especially larger, more complex litigation) focuses on documents. At trial, of course, the credibility of witnesses may be critical. But documents often establish the basic facts of a case, because witness memories are deficient. In addition, the terms of operative documents such as contracts generally determine the major legal issues in the case, even though witness testimony may amplify or even contradict such documents. Finally, documents generally matter a great deal because they are hard artifacts of history. What was written in a letter in 1995 will never change. What a witness recalls about a conversation in 1995 may vary greatly, as time and circumstances change. Because documents matter so much, junior litigators must learn how to handle them effectively. Mastering the process of producing documents to an adversary in response to a discovery request is a critical skill. The process includes learning to communicate with a client about discovery requests, developing an organized system for gathering documents from a client, and becoming familiar with the conventions such as Bates-stamping, privilege indices, and confidentiality stipulations. Most critically, junior litigators must familiarize themselves with the rules of attorney-client privilege and work-product protection. A significant element of most major document productions is review of documents for privilege and other confidentiality concerns. Junior litigators are generally expected to at least spot potentially problematic documents, even if they cannot resolve all issues without senior guidance. Learning to make such privilege calls, and learning to ask the right questions, such as which of the names on the documents are names of attorneys, when did preparation for the litigation begin, what subjects are relevant and irrelevant to the litigation, is of critical importance. In the other direction, junior litigators must learn to piece through records to learn what happened relevant to the dispute, and to develop the client’s best arguments for the litigation. Junior litigators must also learn to follow up on leads for additional information. More than simply duplicating prior document requests in other litigation, this follow-up process requires attention to detail, noting references to documents in materials already produced and in the testimony of witnesses at depositions. Learning to identify holes in the pattern of information necessary to establish a client’s case, and strategizing with senior litigators on how to gather such additional information (from the client, adversary or third parties) again is of great importance. NEGOTIATE EVERYTHING By the time you complete law school, you should be aware that many if not most civil litigation matters eventually settle. Despite that fact, many law students take no negotiation courses in law school, and may have little practical experience with negotiation. Effective litigation demands good negotiation skills. But such skills are not simply required for overall resolution of a case. Virtually everything in litigation can be, and often is, negotiated: extensions of time, restrictions on discovery, confidentiality agreements, stipulations of facts, and trial procedures, to name just a few. Junior litigators may be involved in such negotiations at a very early stage. A junior litigator must be aware that anything he or she says to an adversary — certainly in writing, but also in person or on the telephone — may be construed as a representation of fact, or a binding offer to proceed in a particular fashion in the litigation. That fact should make it second nature for a junior litigator to make sure that he or she has authority before speaking on behalf of a client or senior litigator. Where the junior litigator is unsure of authority, moreover, any statements and offers should be expressly couched as tentative, subject to confirmation, or not made at all. The verbal habit, in such situations, is generally to state (in substance): “I hear what you are saying and I will take that back (to the client or senior litigator) for consideration.” That verbal habit, of course, must be combined with a habit of promptly confirming with client or senior litigator any tentative proposals you may receive from an adversary. Confirmation of arrangements, moreover, extends to creation of a written record of agreements. The practice of exchanging confirming letters and drafting stipulations and court orders on consent of the parties is an important element of the learning of junior litigators. The process of negotiating and documenting agreements on parts of a litigation, moreover, is part of the preparation for involvement in overall settlement of litigation. KNOW YOUR AUDIENCE In law school, arguments are abstract things with little connection to actual consequences. Learning to “think like a lawyer” means developing the ability to think of all sides of an issue. Law school generally does not require that a student pick a side of an argument, or focus on persuading a particular audience on a particular point. Litigators must learn to do precisely that. Starting from the first days of practice, the question of what are the good arguments to be made in support of a client’s position in a particular case takes central focus. Potential arguments, even some quite novel, may be vetted in the course of representation, but always with the ultimate goal of determining what is likely to be effective. Junior litigators soon learn, moreover, that an argument that may be effective with one audience may fail with another. Litigators quickly become aware, for example, of the fact that some clients may love particular arguments, even though there is no way to prove the client’s point, and no likelihood that a judge or jury would accept it. So, too, junior litigators must learn that judges, juries and adversaries may disagree with their best-reasoned arguments. Indeed, junior litigators come to learn that much of the value that litigators offer to their clients is the ability to discern which arguments are most likely to be effective in particular situations, and to make rough calculations of the likelihood of success with particular arguments. In that vein, the choice not to make certain arguments may be as calculated as the decision to advance particular claims and arguments. Ultimately, argument selection, order and phrasing turns on knowing the audience addressed. Junior litigators become accustomed to researching the background of the judges and adversaries with whom they interact. They also learn to tap into any informal networks, such as colleagues or classmates, for information. When a junior litigator becomes involved in his or her first jury trial, moreover, an acute focus on the characteristics of potential jurors and the jury panel will be developed. Eventually, a junior litigator will find that a great deal of his or her time is spent thinking about the characteristics and likely responses of the intended audience. Large parts of the litigation process involve tasks that lawyers cannot perform, that they do not do well, or that they prefer not to do. Litigators cannot serve as testifying experts in their own cases, much as they may think that they know everything there is to know on a particular subject. Nor are they particularly adept, in most cases, at handling computer databases and electronic records. And when it comes to organizing and copying paper records, most lawyers would prefer that someone else do the work. In these, and many other instances, litigators can and will engage outside vendors of services to support them. Junior lawyers must learn to deal with such vendors. The most basic lessons have to do with ensuring that vendor expenses are not incurred without client approval. The learning must quickly progress to the point of giving specific, clear directions to vendors, to ensure that the work they do is not wasted or duplicative of work done at the firm, or by the client. Ultimately, the learning extends to recognizing that the ability to assemble a team of players in response to a litigation problem includes the ability to recruit and use outside vendors effectively. Clients largely expect their litigation counsel to handle most of the details in engaging and working with service vendors, though they often wish to know the potential costs. Establishing a network of vendors thus becomes a useful skill for litigators. For most litigators, the professional experience is comprised of a series of cases and disputes, each of which may offer the litigator the opportunity to learn some of the basic lessons outlined above, as well as to develop and refine many other skills involved in litigation, such as conducting discovery and drafting pleadings and motions. That learning occurs against a backdrop of exposure to a variety of problems, often in different businesses and areas of law. Thus, for litigators, learning never stops. Junior litigators must recognize that an attitude of humility — “I don’t know much about this problem, but I am willing to learn” — will serve them well both in the early stages and throughout a career. Steven C. Bennett is a partner in the New York City office of Jones, Day, Reavis & Pogue and co-director of the New Associates Group there. The views expressed are solely those of the author and should not be attributed to the author’s firm or its clients.

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