Good Advice, Hard Knocks Teach Trial Lawyer Skills

Attorneys don't truly know whether they are cut out to be trial lawyers or whether they can handle the pressure until they experience it in front of a jury of 12. All trials have ups and downs, good days and bad days -- the trick is to lean upon good advice, roll with the punches, trust your judgment and stay the course. And to do that, you must try cases -- as many as you can and as early in your career as possible.

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Since my first article on trial lawyering came out in September 2003, a number of readers inquired as to how I came up with my list of tips for trial work success. Looking back through the years, I would have to say personal experience has proven to be the best source of advice. Watching other lawyers work is always informative, as we all copy some from others. I have tried few cases in which I didn’t learn something from the other side, even if it was not to do what my opponent did. I won cases when I wasn’t the best attorney and lost cases when I thought I out-lawyered the other side. We all tend to lose track of the reality that the facts of any case are rarely equal; more times than not, the lawyer with the best facts wins (although great lawyering can markedly alter the margin of victory or defeat). I also have learned that, no matter who you are, if you try enough cases you will lose, and lose big, on occasion. It’s not unlike the emergency room physician who sees hundreds of patients; sooner or later, that doctor will lose one. Other lawyers have given me some interesting advice in my career. The late Warren Burnett once said that a good lawyer must always quote a little scripture to the jury — juries love it, and it doesn’t matter if you got the scripture right, as the jury probably wouldn’t know the difference anyway. For the past 35 years I have been most fortunate to handle cases with and against some of the truly great trial lawyers in Texas. Texas has trial lawyers who are the equal of any in the United States. One of these great lawyers who also was a mentor was Tom Weatherly. He probably knew more about handling people and judging human nature than any lawyer I have ever known. He was one of a kind. Paul Stallings tells the story of Weatherly’s argument concerning the qualifications of the Harris County medical examiner. The ME was the plaintiff’s expert in a medical malpractice case against one of Houston’s most famous heart surgeons. Weatherly argued: “Dr. Joe (the medical examiner) is a fine man, and I like him a lot. The only thing is, ever since he graduated from medical school, he has never treated a patient who didn’t have a name tag wired to his big toe.” The jury found no malpractice. The best advice Weatherly gave me was the importance of getting to know all of the people associated with the court at the courthouse. This means you need to know, on a personal level, the clerk of the court, the bailiff, the court reporter and whoever else assists with the trial. He believed, and it is true, that during a trial any one of those court personnel could have some contact with the jury. It is always to your advantage if court personnel feel positively about you, because you never know when some gratuitous comment could be made that either advances or sinks your case. These folks also usually prove to be the best shadow jury I have ever known concerning who’s winning and who’s losing during the course of a trial. Another mentor, Gay Brinson, emphasized the importance of reading and re-reading the Texas Rules of Civil Procedure (TRCP). He was a wonderful trial lawyer, from whom I often sought advice about how to handle various issues that came up with my cases. When I went to ask him some question, he would turn around in his swivel chair, reach into his credenza and always pull out a copy of the TRCP. I was consistently dumbfounded by how the answer to many of my questions was so easily determined from merely reading of the rules. Even to this day, I am surprised at how common it is to get away from reading the rules and relying on one’s general feel for them, rather than their specific language. One of the most important tips concerns getting along with opposing counsel. Years of trial combat taught me it is far better to try to get along with the other side rather than allowing everything to become a heated battle. It seems today that so many of our relationships with opposing counsel deteriorate more quickly; cases become almost exclusively a motion practice, with personal recriminations creeping into the pleadings and arguments. I remember a case I tried to a jury verdict (and lost) with Ronald Krist, a truly splendid lawyer. It was a case we fully prepared, took to trial and ultimately settled after the verdict without needing one hearing before the court on any kind of dispute. That is a rare occurrence today. The trial business is tough enough without making it tougher with scorched-earth tactics. It is also true that what goes around, comes around. Dealing with pressure is something all lawyers cope with; it’s essential for trial lawyers to do so. Never is that more true than when those around you lose their heads — you must keep your wits about you. Ability to handle pressure is what separates very good from merely average trial lawyers, and it determines which lawyers try suits and which ones settle. Attorneys don’t truly know whether they are cut out to be a trial lawyer or whether they can handle the pressure until they experience it — always from facing a jury of 12 with your client’s money or injuries in your hands. All trials have ups and downs. All trials have good days and bad days. You must learn to roll with the punches, trust your judgment and stay the course. To be successful as a trial lawyer, to learn to deal with pressure you must try cases — as many as you can and as early in your career as possible. I think any young lawyer who has the ability to understand human nature, who has an aggressive, persistent trait to their nature and who can manage pressure probably ought to think about being a trial lawyer, especially if he or she likes doing great things in front of people. It’s a very exhilarating experience. There is no greater high than winning a suit and no greater low than losing one. Competitive people enjoy that sort of thing. Being a trial lawyer is a challenging and rewarding way to practice law, and I endorse it. Knox D. Nunnally, a partner in Vinson & Elkins in Houston, has a broad-based litigation practice. He has been a practicing trial lawyer since 1968, when he graduated with honors from the University of Texas School of Law. He is a fellow of the American College of Trial Lawyers and was certified by the Texas Board of Legal Specialization in personal-injury trial law in 1978 and civil trial law in 1979. “Voice of Experience” appears regularly in Texas Lawyer.

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