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  • Richard Kerger

Experience Really Matters

For the past thirty years, the frequency with which businesses are involved in litigation has been declining. This is no doubt beneficial and is a reflection of the many alternative dispute resolution processes that are in use.

But there still are those instances in which a company must proceed to stake part of its future on the outcome of a decision from a courtroom. But because of the declining number of lawsuits, the experience level of most lawyers who claim to be trial lawyers is declining. Increasingly lawyers who hold themselves as “litigators” are ones who work steadily through the pretrial processes and then, when the trial of the case is nearly there, push clients to settle. Those lawyers are unsure of their ability to present the case to a judge, much less to a jury. They are afraid of the unknown. So settlement is urged.

That is not to suggest that these are bad lawyers, or that their advice is not necessarily correct. But a client should be comfortable that if the matter is not resolved, her lawyer has the skills necessary to try the case with confidence.

A client should ask out how many times the lawyer has actually tried a case to a verdict, be it to a judge or to a jury. When was the last time they did that? What were the outcomes? Since these all would have been matters of public record, there is little that cannot be disclosed. The client may want to contact some of those who have been represented at a trial by his lawyer to see if they were satisfied with the performance of their lawyer.

In England, lawyers are divided into two major classes – solicitors and barristers. In simplest terms, the solicitors are the ones who meet with clients and help develop their cases. Barristers are then hired by the solicitors to present the clients’ cases in court. In England there are roughly eight times more solicitors than barristers, reflecting the significance of specialization in trial work. In the United States, there is no such division and thus clients are at a disadvantage in determining if their lawyer is actually one who knows how to try a case.

Since there are very few instances in which a client will get a “do- over”, it is important to get the legal team right the first time. Of significance is the fact that in recent years, a larger percentage of actual trial work comes from lawyers handling criminal cases. While the risks and strategies are different, the actual trials are conducted in the same way a civil case would be. An experienced trial lawyer who does criminal work is therefore readily able to handle civil cases.

The size and reputation of the law firm is not terribly important. In many large firms, the lawyers who are held out as “trial lawyers” rarely conduct actual trials. The client has to perform some due diligence to find out what the track record of her lawyer really is. Talk to other lawyers. Know your lawyer’s capability before you can see the steps to the courthouse rising in front of you. Experience really matters.

Recently I have been reading articles by various highly-skilled trial lawyers and listening to podcasts from others who are operating at the highest level of this kind of work. Many of them explain that they still felt nervous, perhaps a little frightened, before the trial gets underway. A few even admit to vomiting on the morning before trial commences.

Was I ever that way? Of course. In my early years when I would get done with a closing argument, it would not just be the armpits of my shirt that were wet but the suit coat was soaked. I was never physically ill, but when I stood to address the jury to conduct a significant examination of a witness, my hands shook a little and I was afraid things might not go well.

But after 40 years of trying case, and I have tried between 200 to 300 – some years ago I lost track, I really am not nervous when a trial begins. I certainly have no fear.

To be sure, the secret is that I have done it so often that I am comfortable that when things do not go my way, I will find a way to deal with the situation that presents itself. It is my belief, and my experience, that a crisis in the courtroom affords an opportunity to turn things to your client’s advantage. Even if it seems hopeless, there is always a hook you can hang on to. You just have to find it.

A couple of observations as to what I think has led to my sense of calm when in trial. First, I understand the problem being resolved is not mine. It is that of my client and while I will move heaven and earth within the bounds of ethical conduct to achieve my client’s goal, I know not to make her problem mine. It is not that I do not care. Indeed I care as much as I always have. But I need to keep a professional distance if I am going to use my best judgment on behalf of that client.

Second, I accept the fact that despite my best efforts, and I certainly try to put my best efforts into every case I try regardless of the stakes, I accept the fact that losing is a possibility. I hate it. I still dwell on the losses far longer than the wins. I will conduct many post-mortems in my mind in the weeks that follow a loss. But my mental gymnastics are not done to beat myself up – they are intended to understand what happened so I do not have it happen again.

Third, I still love the process of preparing for trial. Selecting the exhibits, assigning them to witnesses and working out witness examinations are still very enjoyable experiences for me. I can visualize what will be happening in the courtroom. As I drive from the office to an appointment, I will imagine my cross examination of the Government’s key expert witness. I will see myself standing in front of the jury delivering the opening remarks. I will hear the colloquy with defense counsel over a legal issue.

For 40 years I have written out every direct and cross examination and every opening and closing argument. Now I do not follow those outlines as I examine a witness or address a jury. But the process of reducing them to writing focuses my mind and gives me a clear understanding of the task at hand. I generally end my closing remarks with my notes stacked neatly at the podium with the very first page staring back at me, the rest never having been stirred.

No, I do not believe I have any super human skills and it may be a strong Christian faith that calms me, but whatever the reason, I feel no angst in heading to or being in a courtroom. Experience really does matter.

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