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In Neil Gaiman’s novel The Ocean at the End of the Lane, he writes: “Adults follow paths. Children explore.” When facing a problem, it is easier for us to follow in the steps of those who have come before us than to explore and seek out creative solutions. But it’s not uncommon that the “tried and true” solutions whose paths we are following aren’t as great as we envision them to be.

Have you ever read a franchise agreement or other business contract? Most of them were originally drafted a decade ago. Since then, new contributors have added paragraphs and bullet points as new situations have arisen. Nothing ever gets deleted. There may even be conflicting language. By the time you start using the time-tested template, the contract is so unnecessarily complex and imposing that you can barely understand it, much less explain everything to your client. This is what comes of mindlessly following the paths before us.

Explore Your Options Like a Child

I’ll give you a personal example. As I entered my fourth year of practice in 2016, I was approaching a crossroad in my practice. I was either going to continue to be a good associate (and good associates are a dime a dozen) or I was going to take steps to position my firm to need to make me a partner within the next few years in order to keep me around. I needed to develop my own business and make myself invaluable. As it stood at the time, I had plenty of work to do, but it was someone’s else’s work and someone else’s clients. I needed to put things in motion to effectuate a change. But what? And how?

The well-worn path was to go to mega-conferences focused on your practice areas and try to rub elbows with people who do or might in the future send you business. I did that a couple of times and decided that tact wasn’t going to work for me. To be fair, I still go to conferences, but smaller conferences, and have found a way to do the homework and make those opportunities worth my while.

I had to engage some childlike creativity to find a solution that worked for me. I put a great deal of thought into things and assessed my strengths and weaknesses. Major weakness: I’m an introvert who does not enjoy small talk and hordes of people. Major strength: I enjoy  writing. For me then the new path I wanted to explore was blogging. Have a law blog has kept me engaged in developments in my practice areas and within the business of law that I did not previously experience. I have developed relationships and opportunities that would not otherwise have surfaced. I have a book, Building a Better Practice, that has directly resulted from this blog. All this writing has given me opportunities to provide information and data to clients and potential clients, which helps build trust equity.

I can’t tell you I have clients now as a direct result of my deviation from the standard path. But I have developed confidence and a platform I would not have without having explored another option.

Don’t Limit Your Exploration Application

Engaging your childlike curiosity is not limited to any one particular part of your practice. You can get creative in your motion practice, in considering arguments to be made in support of your positions, in business and financial planning, and of course in marketing. While the well-worn paths may serve their purposes, you will not know what other, and perhaps better, opportunities await you, unless you deviate from the path and explore.

Every day you have tasks that have to be completed. Most of them are not charming or glamorous, but carry some importance nonetheless. There are going to be times when you can barely stomach the idea of writing another report or making another phone call. It can be helpful to reframe those tasks in a productive light that motivates you to complete them.

My thoughts on this topic can be read at the ABA Journal’s “Your Voice” feature: Frame those onerous tasks in order to motivate you to act.

“Cognitive space is precious” – when I heard someone use this line the other day, I almost burst out laughing. Note: Random bursts of laughter almost always draw suspicion in a law firm. Nevertheless, it struck me funny, mostly because it’s true. There is only so much critical thinking you can do in a day. You need to save that precious cognitive space for the times you really need it.

An article in The Atlantic discusses productivity studies showing that people can focus on tasks for about 50 minutes at a time before needing a 15 minute break to allow their brains to reset. These breaks are most effective when taken away from electronic stimuli, including avoiding looking at phones. Engaging in conversations and going for brief walks are some of the most effective ways of resting one’s brain and boosting productivity.

Knowing that our brains limit the amount of time in a day that it can be put to work on critical tasks should motivate us to identify that critical work so we can focus on it and create hacks for the non-critical work to make it more efficient.

Fill Your Cognitive Space Appropriately

There is plenty of legal work that requires critical thinking, but there is more that does not. Or perhaps a better way to say it is that there is plenty of legal work that only requires critical thinking once. After that initial investment of time, the work product can be recycled and reapplied in other cases with a minimum of effort.

For example, the first time I had to draft a motion for summary judgment on the issues of wantonness and negligent entrustment, it took me hours, gobs and gobs of hours, to do the research and draft my legal arguments. That is to say nothing of scouring all the discovery and deposition transcripts for undisputed facts and then applying the facts to the law. But there is no reason to duplicate and reinvent the work of drafting those legal arguments every single time I’ve got a car wreck case where I believe summary judgment is due on either of those issues. Unless the law has changed, my legal argument and analysis isn’t going to change much from case to case. I can copy the bulk of that language from one document and drop it into another.

This is true not only for motions, but also for discovery, objections to discovery, complaints and answers. To this end, I keep a folder where I store (or attempt to remember to store) a copy of every type of motion, pleading, or written discovery that I run across or draft myself. There is no sense in putting in the effort or expending the cognitive space to recreate these things time and again.

Reduce, Reuse, Recycle

As with all things legal, this comes with a caveat. The recyclability of your work may depend on who you’re working for. Over the past couple of years, I have done work primarily for two partners. One of them is very particular about phrasing and sentence structure. If he has me draft a motion, he wants it to read as though he drafted it. This proved troublesome at first because we have very different writing styles. We’ve had countless conversations about wording and phraseology, many of which involved statements like this: “Nothing that you’ve written is wrong. It’s just not how I would have said it.” With that, it had to be rewritten. In an effort to hit peak efficiency, I began saving templates into distinct folders for the partners they applied to.

What I would caution young lawyers to set aside is the need to make your mark by drafting everything from scratch. When you start at a firm, there is likely tucked away on some server or dwelling auspiciously in the cloud a cache of documents that are intended to make your days easier. Young lawyers are often tempted to prove their intellect every time the pads of their fingers hit a keyboard. But that’s not what your employer needs. The attorneys you’re working for need effective work performed efficiently. Frequently, the best way to achieve that is to use the resources already at your disposal. Your firm hired you because you are competent (or have the potential to become so), and proving your value is often a matter of being resourceful rather than inventive.

The life of a lawyer can be difficult enough without shouldering unnecessary tasks like undertaking hours of research and writing when it’s already been done (maybe even by you) before. The next time you draft a document, act with intentionality and save it to a place where you can recycle it later. Your cognitive space is precious. You need to save it so you can unleash your critical thinking for occasions when it’s truly necessary.

If you enjoyed this article, you can find more content like it in my new book Building a Better Law Practice.

Buy the book at ShopABA.org, but be sure to subscribe to the blog for your 20% discount.

Photo by Bruce Aldridge.

For my inaugural appearance on what I expect to be a monthly piece for the ABA Journal, I wrote about the propriety and wisdom of arguing with a judge. I posed this question to several lawyers: “When does something matter enough to argue with a judge about it?” As with all the other times I’ve interviewed lawyers about litigation topics (i.e., voir dire strategy and closing arguments), the answers were interesting and instructive.

A friend of mine shared her experience with me about a recent encounter that required her to call a judge’s ruling into question:

I recently had occasion to quickly ponder (if one can quickly ponder), whether to push to be heard orally on a dispositive motion.  I opted to push. A little background: I had filed a motion for summary judgment several months prior to the trial setting, in accordance with the Scheduling Order. Since the Judge was new to the bench, I called her office first and talked to her clerk about the Judge’s preferred procedure on such a motion. I was told I did not need to obtain a hearing date before I filed the motion and that once the Judge read the motion and was ready to hear it, she would issue an Order setting a date. Time went by and I never received an Order and I called and talked to the clerk a few times and was told the same thing on each occasion.

The trial date came and no hearing had ever occurred. I appeared at the trial docket expecting to argue my motion before the trial began but, instead, was handed a copy of an Order entered that morning denying my motion. It is my opinion that on such a dispositive motion that a hearing is required and I also wanted to make the Judge aware of information that had been learned the week prior that changed some of the dates set forth in my motion, which could impact her ruling. Instead, I held a piece of paper with a single sentence denying my motion without a hearing. What to do? Do I push the Judge for a hearing and risk making her angry before we start the trial by calling her procedure and ruling into question or do I stay quiet and proceed to trial? I knew that even if she granted my request to be heard she would likely not change her ruling in order to “save face”.  Was it worth it? Do I or don’t I? Should I or shouldn’t I? Would my client be harmed if I make the Judge angry before we start the trial?

I ultimately decided that I had no choice. I was not familiar with this Judge since she was new to the bench but if she ruled against my client at trial (this was a bench trial), I knew my client would want to appeal and that I should win on appeal given the facts of the case. If I didn’t have a hearing on my motion, part of the facts I wanted in the record would not be present for the appellate court to review. Regardless of the consequences, I had to make a record.

It’s at this juncture that some experience comes in handy. I knew I had to soft-pedal my request for hearing and be very respectful and humble in my request. You never want to put a Judge on the defensive or argue with them right off the bat.  It sets a bad tone and you and/or your client will pay the price, one way or another. When the Judge took the bench and asked if there was anything we needed to take up before calling the first witness, I very nicely told her that although I had received her Order I would like to be heard on my motion and that while I realized she was not likely to change her mind, I did have some information that I would like for her to consider that was not in my motion and in order to properly represent my client I would need to make a record.  With the respectful way I posed my request and by bringing proper representation of my client into play, I think any judge would be hard-pressed to deny such a request.  Sure enough, she granted my request, heard me out and did not change her ruling but, at the end of the plaintiff’s case in chief, she granted my motion for judgment as a matter of law. I think she respected by willingness to call her Order into question but to do so in a non-combative way. Judges desire respect and even when we know they are wrong about something, I believe if you approach the issue with humbleness, you’re more likely to win in the long run.

I’m going to tease you over to the ABA Journal article with this – before you do launch into an argument with the court, you may need to consider whether your position is worth your license … or even your life. Now, go read the article, “When is it wise to argue with a judge? Only sometimes.“

Photo by Allen Allen

Failures and losing are really unpleasant experiences – is that enough an understatement? In my mind, there are only a few things worse than the failure itself, one of which is dwelling on it and mulling it over. But perhaps even more regrettable than either of those is walking away from the failure without having learned anything from the experience and without taking the time to assess what went wrong. Implementing After Action Reviews into your case management processes can be an effective way to figure you what happened and what might be done differently going forward.

What Are After Action Reviews?

After Actions Reviews (AARs) are a tool used by the military and private sector to assess completed projects and missions to find strengths, weaknesses, and areas of improvement. Borrowing from the HBR article “Learning in the Thick of It,” AARs should not be “postmortems of past failure” but instead are “aids for future success.” In the context of law practice management, you case deploy After Action Reviews following the conclusion of a case. In using this method of debriefing, there are four questions to consider:

• What did we expect to happen?
• What actually happened?
• What went well and why?
• How can we improve?

After Actions Reviews are not intended to be a time for condemning anyone’s actions or reprimanding poor performance. But rather they are a time to foster open dialogue among everyone involved in the process. Everyone should be empowered to participate and express her perspective. The focus of the exercise should be on the result(s) of the case. Whether it’s facilitating how to sustain good results or developing recommendations for diverting from poor results.

Implementing After Action Reviews

To apply this to a litigation practice context, a partner of mine is fond of saying:

There’s the trial you thought you were going to have, the trial you actually had, and the trial you wish you had.

When you win a trial, it’s tempting to be self-congratulatory, revel in your victory, share stories with the office the next day, and move on to the next thing. On the other hand, when you lose, the temptation is to skulk into your office and bury yourself in work, hoping no one asks how trial went. Neither response provides you any real benefit or opportunity to learn and grow from your experience.

No matter how illuminating the success or apocalyptic the failure, there is always something to learn. While we can’t promise to replicate our results, we can always refine our processes.

After a recent trial in which we obtained an unexpectedly good result in a tough venue representing the insurance company directly, my trial partner and I spent a couple of hours working through our two-day trial.

• What had we expected to happen v. what did happen? More or less exactly what did happen, except for one thing. We had developed some evidence during the case that we hadn’t anticipated that enables us to impeach the plaintiff.
• What went well and why? In the moment, nothing had felt like it was going well. The jury seemed attentive and disinterested. Some rulings that were coin tosses went against us. We made some stipulations to help streamline the trial but were never totally convinced that it was a favorable trade off. In the end the jury did what it thought was fair irrespective of what any of the lawyers suggested.
• How can we improve? Well, I can’t rightly tell you that, because even though this blog is geared toward defense lawyers, there are others who read it. But don’t doubt that we talked about it and made plans to implement some new procedures into upcoming trials.

When after actions reviews become a regular part of your practice in which your team can have an open dialogue about what went right or wrong, whether expectations were realized or not, and what can be done to improve your processes and results, you can expect to see consistent improvement and effectiveness.

If you enjoyed this article, you can find more content like it in my new book Building a Better Law Practice.

Buy the book at ShopABA.org, but be sure to subscribe to the blog for your 20% discount.

Photo by Rikard Wallin.

Trials are stressful. They can be made less stressful by having someone at your side who is going to make it easier for you. A good second chair is an invaluable asset. Being second chair at trial is like being a relief pitcher. You’re not going to get credit for the win or the loss, but you can absolutely affect the outcome. Here are some ways that you, in your role as second chair, can best serve your trial partner and ease her burden.

Be Supportive

Second chair is a support role. You need to anticipate the needs of your partner by being attentive what’s going on. Are there documents that might be needed to support a motion in limine? Are there photographs she needs during the examination of a witness? Have deposition transcripts pre-marked with tabs so that if a witness needs to be impeached with his prior testimony, you and your partner aren’t having to thumb through pages or scour the index? Instead, as your partner comes back to the table, you’re ready to hand over the transcript already open to the needed page.

Your second chair support role does not end with tangible things. You are also tasked with mental and emotional support. People handle trial stress in different ways. Some better than others. I have tried cases with several different lawyers, each of whom needs a different kind of support. Some of your trial partners will get really keyed up, and you need to talk them off a ledge. Some will begin to doubt strategies and tactics, and you will need to convince them to stay the course. Others will need encouragement and reassurances. Then there are those who will start to get brash about what they want to do, and need to be reined back in. Being a good second chair requires you to be mindful of your partner and attentive to his needs.

Be Adaptable

Things can change on a dime at trial. There is no better example of this than the OJ Simpson trial. At the outset of trial, Marcia Clark and Bill Hodgman were set to first and second chair the prosecution team. Then Hodgman collapsed … during trial. Clark pulled up Chris Darden to replace Hodgman during one of the most high profile cases in American history. Darden was malleable and adaptable and ready to fulfill his new role.

To a much less notable degree, these types of things happen all the time at trial. Witness testimony frequently goes differently than expected. The judge rules on the admissibility of evidence in an unanticipated way. I have been in trials where I have had responsibilities added and others where I’ve been relieved of them. In none of those instances were the changes a result of something I had done. There was no time to either gloat or pout. Only to adapt and prepare for the next phase.

Be Low Maintenance

Most importantly, you cannot be a good second chair if you require lots of attention. Trial is not the time for you to ask your partner all the questions your inquisitive, hungry mind contrives. When I was a clerk at the St. Clair District Attorney’s office, the District Attorney was trying a capital murder/sexual torture case. During one of the breaks, I approached the DA and asked if he could answer a question. He said, “No,” and turned his back to focus on something else. At first, I was mildly offended. But later, I understood that he wasn’t being rude; he genuinely wasn’t in a place to answer my questions about why it was so important to the defense to bring out that the defendant had been drinking the night of the murder. The DA was focused and in his trial zone, no different than any athlete during a game.

Trial is not the time to pepper your partner with impertinent questions, ask insecurely whether you’re doing a good job, or sulk that other associates are getting more responsibilities (or alternatively, have lighter workloads) than you. Trial is the time for you to be on top of your game and be prepared to meet your trial partner’s needs in anticipation of them arising. It is the time for you to execute your own responsibilities without giving your partner any cause for concern.

Being a good second chair is an exercise in servant-leadership. It’s a time to put into practice the lessons you’ve been learning. But mostly, it’s a time for you to be an asset and resource for the person occupying the first chair.

If you enjoyed this article, you can find more content like it in my new book Building a Better Law Practice.

Buy the book at ShopABA.org, but be sure to subscribe to the blog for your 20% discount.

Photo by Clyde Robinson.

About a year into practice, I was being sent to my first solo district court trial. For those of you not practicing in Alabama, district court trials are bench trials with damages capped at $10,000.00. There is no discovery permitted. The Rules of Evidence usually get a little loosy-goosy. It’s basically the wild West.

Well, I was excited about my first district court trial. It was a small truck wreck case where the Plaintiff alleged that our tractor-trailer backed into his parked vehicle at a truck stop. The driver of the tractor-trailer had a different account of events. He was going to testify that he was backing up but the Plaintiff’s vehicle darted behind him and got hit.

While doing a little background checking on the Plaintiff, I discovered he had recently made a worker’s compensation claim alleging the exact same injuries he was claiming resulted from our accident. He had a different lawyer for each of his claims. In attempting to settle our case, I mentioned this fact to his lawyer in the truck-wreck case. A couple of days later that lawyer withdrew. So I was headed to trial against a pro se plaintiff in a case with questionable liability and questionable injury. What more could a defense lawyer ask for?!

I’ll tell you what more – an adjuster who’s on the same page as the defense lawyer. The day before I discovered we weren’t on the same page. I’m not sure we were in the same library. I got a phone call that went something like this:

Adjuster: “I want you to call the Plaintiff and offer him $10,000.”

Me: “I’m sorry. What?”

A: “Yeah. I want you to make him a settlement offer of $10,000.”

M: “Let’s talk about this. On our worst day, if everything goes against us, the most we can lose is $10,000.”

A: “Right.”

M: “There’s no reason to offer him that much money.”

A: “I understand.”

M: “We could very well get a defense verdict on this one.”

A: “I know.”

M: “But you still want me to offer him the $10,000?”

A: “Yeah.”

M: “Ummm. Ok. I guess.”

It did my heart good when I couldn’t reach the Plaintiff by phone over the next few hours. The next day, I headed up to the courthouse with my truck driver and company owner in tow. It wasn’t necessary for them to be there since I was just going to hand over $10,000 to the Plaintiff, but it had been pre-arranged and I hadn’t called to tell them otherwise. We got to the courtroom and waited with thirty other people for our respective cases to be called. I didn’t know what the Plaintiff looked like, so any number of folks waiting there could have been him.

The judge called our case: John Doe v. Trucking Company and Driver X. I approached the bench, and my clients stayed seated. And a small miracle happened. No one else came forward. The Plaintiff hadn’t come. The Plaintiff who was going to be $10,000 richer merely by showing up to court. He wasn’t there. The judge instructed me to go sit back down, and he’d call our case again after he’d gone through his docket.

Thirty minutes later, we went through the same sequence. Same result. The judge told me he wanted to ask my driver some questions about the accident, then he’d make his ruling. I called the driver up to me and said very quietly, “The judge is going to ask you some questions. I want you to listen very carefully and use all your common sense when answering. He’s trying to help you out.”

Me: “Alright, Your Honor. We’re ready”

Judge: [Swears driver in] “Driver, were you in an accident on X date?”

Driver: “Yes.”

Judge: “Was it your fault?”

Driver: “No.”

Judge: “Alright, I’ve heard enough. I find in favor of the Defendants.”

And that’s how I won my first trial! But there’s more.

A couple of weeks later, the Plaintiff called me to ask about his case. I told him that he’d missed the trial and the Court had ruled in my clients’ favor. The case was over. I never told him he’d missed out on $10,000 by not showing up to court that day. It seemed mean-spirited and cruel. I wouldn’t want to know a thing like that. And although I’m a black-hat wearing insurance defense lawyer, even I’m not that cold.

If you enjoyed this article, you can find more content like it in my book Building a Better Law Practice. Buy it on Amazon or ShopABA.org.

Other stories from the blog:

Losing Control of a Client During a Deposition

How a Murder-Suicide in St. Clair County Helped Decide My Practice Area

When a Potential Juror Says, “Judge, I Have to Pee.”

Photo by Alan.

Westlaw, Lexis, FastCase – in many legal circles these are the only acceptable avenues of legal research. Anything else is not only pedestrian but sometimes even villified.

There are plenty of good lawyers who (secretly, for risk of being shamed) start many legal research projects with a simple Google search. There are several good reasons for it, too. Google searches are free. It’s usually the most practical place to start for complex topics or subjects with which the attorney has only limited familiarity. You can user broader search terms and still pull up useful information, because the algorithms are smarter and Google has access to a greater breadth of information.

The search results from Google can often yield the key words, case law, or statutes that enable a lawyer to more effectively embark on the more in-depth research available by more traditional legal search techniques. Frequently, using Google, or even Wikipedia (even though there is still a stigma around Wikipedia, courts are increasingly finding it an acceptable source), is a more efficient and practical starting point. There are an abundance of non-traditional resources, websites, and blogs with valuable legal insight. Search engines can be used for finding briefs, white papers, and treatises that summarize dense or complex topics. This allows the researcher to more easily hone in on what is important and begin issue-spotting.

Regardless, there are lawyers who turn up their noses at the use of non-traditional sources on the interwebs. Here are two anecdotes from other attorneys on LawyerSlack who have encountered the same resistance.

• A former insurance defense associate used Google Scholar to locate and print off cases that supported her position in a case. The partner griped about the use of Google because the firm “paid good money” for LexisNexis. The cases being used were the same ones that would have been printed from Lexis. Essentially, the lesson was – you should do it like I do despite our achieving the same result.
• An associate was talking with an older partner at his firm and mentioned that frequently his starting point for researched when tasked with answering a question for a partner. This partner was so relieved to hear someone else was using Google. She thought she was the only one and must be doing something wrong.

I don’t mind saying that I have a vested interest in lawyers using search engines and non-traditional information sources to aid their research. Otherwise, more than half the content on this blog would be an enormous waste of time. One of the reasons I started this blog in the first place was that I found a hole in the market that I could fill with valuable information and interpretations. But that is only successful to the extent lawyers use non-traditional legal research methods to educate themselves.

I’m not advocating the use of Google or other search engines as a replacement for traditional legal research. But no one should be shamed or discouraged from supplementing their use of Westlaw or Lexis with other search methods, particularly if other methods are more efficient and equally effective. What is more efficient for the lawyer can result in savings for the client with no loss in work-product.

If you enjoyed this article, you can find more content like it in my new book Building a Better Law Practice.

Buy the book at ShopABA.org, but be sure to subscribe to the blog for your 20% discount.

We were recently interviewing a pool of candidates for an associate position at our firm. After all the interviews, we discussed the various interviewees. For one of them, one of the first concerns was this: “I’m not sure they’d know when to stop arguing in front of the judge.”¹⁾While I do not endorse they use of “they” to refer to a singular person (even though I recognize that it is gaining increasing acceptance), I found it to be the best way to conceal the gender of the individual being referred to. And you know what, that can be a real problem!

When to Stop Arguing Your Point

At oral arguments, you need to communicate to the Court both your position and the factual and legal context that support it. Sometimes that takes a good deal of explanation, and sometimes it doesn’t. Hopefully (but not altogether likely), the judge has already read the parties’ briefs before the hearing and has a fair grasp of everyone’s contentions. During these hearings, the judge will frequently exhibit body language that gives cues to the speaker. Here’s an important one: when the judge begins regularly nodding his head in agreement with your points, it’s time to wrap things up and get out.

I have seen too many lawyers either miss or disregard the cue and continue to barrel through their unnecessarily lengthy argument. And on more than one occasion, I have seen a lawyer talk himself right out of the court’s good graces and right out of winning his motion. Some folks just can’t help but to say everything word they came to court intending to utter. It’s a bad habit. And it can be a costly one. Watch for cues and know when to stop arguing your point.

Asking One Question Too Many

Similarly, lawyers have this insatiable desire for what is known as a “Matlock Moment”. That moment when you have the witness on the ropes, and you move in for the kill shot despite the fact that you’ve already made your point. But (and this never happened to Matlock) you’ve underestimated your opponent, who is a counter-puncher. And your intended kill shot instead gets you knocked out. Because you wanted your Matlock Moment, after which you could have looked over to the jury with a smirk and a knowing look, you’ve gotten a detrimental answer.

A lawyer needs to know when he’s made his point, then move along. There are times when it’s best to leave the last question unasked. Maybe you’ve already gotten enough information that your point has been made. Perhaps you don’t know the answer is going to be. Or there’s a possibility you’re up against someone who’s even more wily or clever than yourself. Regardless, a lawyer needs to recognize when it’s time to sit down without have asked one question too many. The jury saw where the road was leading, and you can always remind them during closing arguments.

Both of these issues, arguing your points and questioning witnesses, come down to restraint and situational awareness. Being obtuse and oblivious can cost you dearly.

If you enjoyed this article, you can find more content like it in my new book Building a Better Law Practice. Buy the book at ShopABA.org, but be sure to subscribe to the blog for your 20% discount.

Photo by Adam Arroyo.