For young lawyers, a steady diet of trial work marks a recipe for future success.
What is your best advice to a young attorney who wants to become a trial lawyer?
The art of being a trial lawyer has slowly been lost. Forty years ago, there were many excellent and well-experienced trial lawyers who were trying cases regularly. Nowadays, unless someone works for a public defender’s office or a district attorney’s office, most lawyers do not have the opportunity, with rare exception, to gain the broad experience that helps to be a trial lawyer. That is a tragedy, but the practice of law has changed.
The best advice for a young trial lawyer is to try cases regularly and, to do that, one has to be prepared. Preparation means more than just looking at the discovery in the criminal case, or the discovery, pleadings and depositions in a civil case. Preparation means talking to witnesses and reviewing the testimony of a client. It also means being fully knowledgeable and conversant on the law in that particular area.
Being a trial lawyer requires the willingness to take risks during a trial if necessary. It means the ability to know the case so well and to be willing to go off script if issues arise during the course of a trial. Too many lawyers have their preplanned scripts and all the questions written out and ignore the opportunities that arise in a witness’ testimony or as the trial unfolds because it is not on script.
Too many trial lawyers now are like Andy Reid coaching a Philadelphia Eagles game. He is a tremendous coach who does very well as long as everything is on script. Once he goes off script, particularly in the pressurized time of the fourth quarter, sometimes things don’t go as well. A trial lawyer has to be in a position where things go well and have the ability to go off script.
The other point for a young trial lawyer is to try cases. This writer, when he started out as a young attorney and went on his own, took every case that came in the door. That is what this writer was told to do by the older members of the bar. Just try cases. If someone has money, take the fee and try the case. If he or she doesn’t have money, still try the case. Obviously, trying cases without fees is not something one does throughout a lifetime except pursuant to his or her pro bono commitment. But it is an excellent way to get the opportunity to be in court regularly and try cases when an attorney is beginning a career.
As a young trial lawyer, take advantage of the opportunity to get into court. If one can’t get into court regularly, then go over to court and watch the more experienced trial lawyers. If there is an opportunity, go to lunch with more experienced trial lawyers and talk to them about how to react to trial situations. Also, talk to judicial officers. A judicial officer is the best person to consult in terms of courtroom decorum and presence in the courtroom.
A young trial lawyer should learn to be civil and enjoy his or her opponent. There are, indeed, some lawyers who are just nasty. But to the rest of the bar — a collegial and talkative group — these lawyers are the outliers and are to be avoided if at all possible. The majority of lawyers are fun to be around and fun to talk to. There is absolutely no reason to make an enemy of one’s opponent. In fact, a young lawyer can learn a lot by being friendly with his or her opponent and, perhaps at the end of the trial, even getting a critique.
Talking to jurors is also a very positive thing for young attorneys after trying a case. One will have to ask permission from the court, but if it gives permission, talk to the jurors. But when a young lawyer talks to the jurors, don’t be critical of their verdict. Just discuss with them points that the jurors found important and discuss with them any thoughts or comments they have about the lawyers’ performances. Listening to jury panels is an eye-opener in terms of how to present a case and what should be emphasized, as well as what should not. Even if a lawyer loses a case, he or she should still talk to the jurors. Lawyers who do that, in a proper and noncritical way, will find it extremely rewarding and a learning experience.
Finally, if someone really wants to be a trial lawyer and try many cases, then the lawyer has to be willing to make a commitment. Trial work is not a 9-to-5, five-day-a-week business. A lawyer actually trying cases will find that work regularly extends into a seventh day, and the days span to 16- to 17-hours-a-day commitments. If one is actually trying cases regularly, then one needs to also prepare for cases. That means working nights and weekends. Even if one isn’t on trial, any busy trial lawyer knows it is impossible to get any substantive work done during the daytime because of the litany of phone calls that come in.
To be a trial lawyer, one has to be willing to make that commitment. A young trial lawyer who is married and has young children might not be in a position to make that kind of commitment. Very few spouses, unless they are trial lawyers themselves, understand the type of commitment required to learn the craft of trying cases. Unfortunately, that is why so many of the top trial lawyers have been divorced once or twice in their life. Being a trial lawyer is an all-consuming business.
Another part of being a trial lawyer is to do a lot of public speaking. Speak at bar association events, speak at CLE courses, run for office, teach in Sunday school or synagogue. Take every opportunity one can have to speak publicly on various and sundry subjects.
Also, get away from the habit of talking from notes. A good trial lawyer has to learn to do it in his or her head. It will take a while, but at some point good trial lawyers have to wean themselves off of notes, particularly in closing arguments and in questioning witnesses. If they don’t, they will never reach the final stage of being a fully rounded and professional trial lawyer.
An experienced trial lawyer can make a difference in people’s lives and can help many people. It is a very noble and honorable profession. As the 21st century progresses, there is an absolute need for young lawyers to make that kind of commitment to preserve the skills and traditions of the criminal and civil trial bar.
Involve the court before taking moneyfrom a departed lawyer’s referral fee.
A lawyer left my firm and a referral fee has come in for which he is owed a portion. But the lawyer owes some money to the firm, particularly since the lawyer neglected a case and resulted in the firm having to pay out money. Can I subtract the money from the referral fee?
The answer is no, at least not without a court order or some type of hearing. If the lawyer in the firm was entitled to a referral fee, then that is the lawyer’s money. If the firm gets that money, the referral fee has to be placed in the escrow account/IOLTA account of the firm. Obviously, the firm cannot forge the lawyer’s signature on the check. It is assumed the check is payable to the law firm in which the firm had some agreement with the former associate to pay. Therefore, the monies that are due to the former lawyer have to be held in escrow.
Once in escrow, the firm can then contact the lawyer to see if he or she will consent to some sort of resolution. If the lawyer will not consent, then the money cannot be taken to pay the debt.
The interesting question becomes how long the firm can hold the money. Under Rule of Professional Conduct 1.15(e), a lawyer has to properly deliver to a client or third person any property, including funds, that the client or third person is entitled to receive upon the request of that person. Also, lawyers will promptly give a full accounting. But, under Rule of Professional Conduct 1.15(f), when a lawyer is in possession of funds or property in which two or more persons, one of whom may be the lawyer, have an interest or claim, then the funds have to be retained in the escrow account pending the resolution of the dispute. Portions of the funds that aren’t disputed have to be properly delivered to the lawyer. If the dispute is going to take some time, the monies should not be held in the escrow IOLTA account, but should be put in an interest-bearing escrow account with the interest going to whichever party prevails on the claim for the funds.
In the question presented here, for the law firm to maintain funds to reimburse them for the negligence of the lawyer on cases, the firm has to start some sort of action against the lawyer. Without an action, there is no judgment or nothing pending as to why these funds should be maintained.
It should be recalled that referral fees, at least in Pennsylvania case law, are treated as monies due to the lawyer and failure to maintain referral fees in escrow or misuse of the fee could be treated as conversion, which obviously has serious disciplinary and potential criminal consequences.
Further, even if the lawyer has a clear right to recover funds from the associate or whomever’s funds came in, there is no right to take the funds unless there is a court judgment or an agreement. Otherwise, the monies have to be held in escrow until resolved or, if there is no litigation, then turned over to the person who is demanding the funds. The fact that the law firm has the funds due to someone else does not give the firm some type of legal edge in terms of deducting from or taking those funds. •