In a boxing match, at the end of each round the boxers return to their corners for one minute. In that time, their corner man, a trainer, goes over the past round and gives advice of what is wrong, how to adjust the strategy, and applies some ointment to cuts and bruises. In the practice of law, all new lawyers need a corner man (OK, a corner person, but you get the idea). New lawyers need an experienced lawyer to give advice, what not to do, point out their mistakes, and occasionally apply some soothing ointment in the form of encouraging words. The person can be someone appointed as a mentor by the new lawyer’s firm, or someone the new lawyer finds on his or her own. In my own career I have had several; my preceptor (a requirement by the Pennsylvania bar when there were many more individual practitioners and small firms), my trial partner at the U.S. Attorney’s Office in Chicago, and a supervisor in the Department of Justice. What I learned from them came from their years of experience. Find such a person.
Although my advice in this article is slanted toward litigation, it applies equally as well to the other disciplines in the law practice.
• Know the rules of procedure, and in this case, especially the local rules of the Eastern District.
Courts will generally know what to do with your case once it gets to them in proper manner and form. This advice may sound over-simplistic, but I once heard former U.S. Chief Magistrate Judge James Melinson of the Eastern District of Pennsylvania, participating on a CLE panel, complain that a great many attorneys appeared before him with pleadings that were out of time, not in proper form, that required amendment or even dismissal because of a lack of knowledge of the local rules. In my own book on the Eastern District local rules, there are hundreds of cases in the annotations dealing with misapplication of the rules. It is difficult to explain to a client that you did not know the proper application of the rules.
• Keep up on the law.
Very soon in your practice you will begin to concentrate on certain areas. Make it a practice to regularly read the new cases in that area. Older practitioners called this reading the advance sheets. In this age of computer research don’t be misled by thinking you can always run down developments with a computer search. Some of the cases may not be picked up in your search. Do it every week and keep a logbook. You won’t be able to bill this to clients, although I would not be surprised if someone in a large firm could come up with a theory of how to charge this, but that is another story. Communicate with the attorneys who handled the recent reported cases. They often will give you some insight that is not apparent in the court’s opinion. The attorneys will be pleased that a new lawyer is working in this area, and you never know when this will lead to future business.
• Prepare for a court appearance, even if it is a hearing on a motion.
Good trial lawyers always have an organized presentation, with ready words and thoughts. Remember the judge is looking for a solution, not a law review comment or how uncooperative the opposing counsel has been. Give the judge your solution, and how to get there. Be ready to offer a proposed order, or in an evidentiary matter, proposed findings and conclusions. Busy trial judges appreciate such efforts.
• Prepare your witnesses, even for a short hearing.
Go over their testimony, with your questions, and their answers as if you are in a courtroom. I am certain the first time you hear a witness’s answers to your questions you will be frightened. There is nothing wrong with making sure the witness is precise. If you ask a question in court in a different form than when you prepare the witness for, you may well get a different answer. Well-educated or professional people need as much preparation as a layman. An unprepared witness is just as bad as an unprepared lawyer. Preparing a witness for cross-examination is for another article.
• Don’t send letters or emails to the judge, except in circumstances permitted by the judge’s practices and procedures.
Former Eastern District Chief Judge Louis Bechtle had a three-letter rule, which was adopted by Judge Lowell Reed when he was on the bench. There are only three times a lawyer should send a letter to the court: when the court invites communication on a specific matter by letter; to advise the court that the case was completely settled; or counsel has a serious personal matter that affects scheduling. I would add an obvious one: Counsel is required to appear in a higher court. Don’t copy the judge on letters to opposing counsel, especially in situations where you are pointing out some improper conduct on his or her part. (“This is the fifth time that you have missed your discovery deadline and this has prejudiced my preparation of this matter.”) The judge doesn’t want to hear such communications.
• Don’t attempt to negotiate by letter.
Meet with opposing counsel face to face. You will learn a lot and will always make some progress. There are valuable courses on the art of negotiation. Take one. You will be pleasantly surprised.
• Get trial experience.
In larger firms, this is becoming more difficult, but a lawyer who wants to get trial experience will find opportunities to do so. No matter how much you read about trial practice, it doesn’t compare to being in court and examining and cross-examining witnesses; introducing documents; and knowing when and how to object or make a timely motion. A jury trial is a great exposure, and to participate in a jury trial is a valuable lesson in advocacy and evidence presentation. Unfortunately, jury trial experience is becoming less and less available. There are many senior litigation counsel who have never been before a jury. No matter the forum, get courtroom experience. Some complicated arbitrations offer a chance to gain experience in presenting evidence. You will need some trial experience for your personal development even if your practice is advisory. My preceptor, who was a fine trial and appellate lawyer, would often remark when evaluating another lawyer, “He never tried a case.”
• Learn appellate practice.
Too few lawyers have this skill including experienced litigation lawyers. You should not take an appeal without good advice. There are some good appellate CLE courses, but the best method of instruction is getting hands-on advice from an experienced appellate lawyer. Briefing and arguing a motion in the trial court is a practical way to get a feel for this discipline.
• Show appreciation for a referral from another lawyer.
Refer a client to that attorney if you can, but there may be situations in your early career when that will be impossible. Pennsylvania permits a referral fee to another lawyer, but quite often this will not be financially possible. In my own practice, I do not give or take referral fees, except from plaintiffs attorneys in the personal injury or medical malpractice cases where referrals are a mainstay of the practice. Offer a dinner (not lunch), or take the lawyer to a play or a lecture, and at the end of the year send a note, handwritten with an ink pen, thanking him or her for his or her help. It goes a long way.
• Know the unwritten rules of the judge who has your case.
Every judge has a hot button. Learn it beforehand. This goes for jurisdictions outside of Philadelphia. Every court system has its own unofficial practices, especially in state courts. There is one county outside of Philadelphia where it is certified malpractice to appear without local counsel to level the playing field.
The practice of law is similar to the practice that professional golfers do almost every day to master nuances of the game. You must constantly perfect the nuances of your law practice.
Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of “Eastern District Federal Practice Rules, Annotated” (Gann Law Books). He can be contacted by email at email@example.com. Vaira has a blog devoted entirely to Eastern District practice at http://petervaira.wordpress.com.