Running up the score?


Sam Koch (4) scores on a fake field goal in the Ravens' 55-20 win over the Raiders on Sunday.

I love my Ravens and I loved watching Sunday’s game. I’ll admit that I was nervous going in and wasn’t sure what to expect but couldn’t have asked for a better result.

While I always love a victory, I do have just a bit of sympathy for the Raiders. Did the Ravens run up the score? I don’t know, but scoring a touchdown off a fake field goal when you’re up by 24 is always going to raise some eyebrows.

While watching the game didn’t immediately stir the lawyer inside me, it still has stayed on my mind. We often write about professional courtesy here at Generation J.D. And Sunday’s game got me thinking about situations in the legal profession where one party wins a case by what seems like a large margin and the behavior of the attorneys (and their clients) to each other in such cases.

Specifically, it got me thinking back to when I was clerking for Judge Emory A. Plitt in Harford County Circuit Court. One of the most important lessons I learned from him was treating all attorneys and parties with respect no matter how the case ends up. Even if things take a turn for the worse in court, it’s important to remember that the attorney still worked extremely hard to represent his or her client.

Along those same lines, sometimes you don’t win your case. But that doesn’t mean you’re a bad attorney or did a bad job. It might just mean the evidence didn’t go your way.

Have you ever been in a Ravens/Raiders type of matchup in court, a deposition, an arbitration or any other type of legal proceeding?

My pregame trial ritual

tic tacI get pretty pumped up when I attend court. Whether for a simple scheduling hearing, a three-day trial or something in between, there is always an adrenaline rush that begins from the moment I identify myself for the record.

At that moment, I become hyper-alert. Whether it is making representations to the court or intently listening to the questions of opposing counsel or the testimony of the witness, there is undivided attention on my part. I enjoy it and it is one of the reasons why I enjoy being a litigator, but it is also draining emotionally and physically.

Recently, I was scheduled to try a case in Montgomery County District Court. Between opposing counsel and myself, we represented in good faith to the court that our trial would last approximately 1 hour and 40 minutes. I had one witness, opposing counsel had two. We started our case at 9:40 a.m. and the court, after several hours of testimony, a lunch break and unsurpassed judicial patience, ruled (in my favor!) at 4:00pm. Obviously, our initial projection of the length of the case was somewhat off (by about 5 hours, give or take).

Fortunately, I have gotten into a pretty good pre-court routine, which helps me to be prepared in the event that a simple day in court ends up being an entire day at court. Much like some professional athletes have pregame rituals (i.e. Hall of Famer Wade Boggs ate chicken before every single game and always took exactly 150 ground balls during infield practice; Paul Pierce of the Boston Celtics eats a peanut butter and jelly sandwich exactly 55 minutes before he jumps on the court), I have a pregame ritual before I go to court. (Though I am maybe not as obsessive as Boggs or Pierce.)

Here it is:

The Litigation Bag – The day before the court appearance, I always pack my litigation bag to include any documents that I need, my Maryland Rules Volume 1, at least two notepads and several pens. Essentially, everything is in order and in my bag before I go to bed. I always have the Maryland Rules when I am in state court, even when I do not expect to use them. I would rather not need them and have a copy on hand then vice versa. It is also a lifesaver when you do need it.

Reviewing the Court Notice I also confirm the actual summons or court document directing my appearance on the hearing the day before, not the day of. Calendars sometimes lie. Nothing is worse than being late for a hearing because your calendar said it was at a different time.

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Top five legal movies: A Sandy-inspired list

tom cruise in a few good menAs my family settled in to weather Hurricane Sandy (yes, bad pun intended), we prepared some movies for the children, hoping with wild optimism that we would not lose electricity. We also, of course, prepared the flashlights, candles, books and board games that we thought much more likely to help us pass the time. (We made the other necessary preparations, too, purchasing ice, milk, water and other necessities in quantities appropriate for a baseball team, if not an army.)

Luckily, we did not lose power throughout the storm. Our kids were happily entertained while held indoors all day on Monday and Tuesday with a healthy mix of Disney movies, kids’ books and board games. This preparation got me thinking, however, about movies in general . . .  and then this blog got me thinking about legal movies in particular. So, herewith, my top five legal movies.

1. A Few Good Men
This was one of the first movies that got me interested in the law when I was in high school. I was initially drawn to it because of the famous scenes (“You can’t handle the truth!”) and the edgy intensity that Jack Nicholson brings to the whole movie. However, I still like it because it takes the time to show how important the preparation of a case is and how meticulous attorneys must be when presenting a case to the jury. Also, the ending, while inspirational for the personal transformation of Lt. Junior Grade Daniel Kaffee (Tom Cruise), does not sugarcoat the reality of a legal battle: sometimes a win is also a loss.

2. Michael Clayton
George Clooney plays the title character, an attorney who handles all of the nitty-gritty, dirty matters for a prestigious big-time law firm. He refers to himself as a “janitor” in one scene. Some great scenes with both George Clooney and Tilda Swinton (in an Oscar-winning role), who stars as general counsel for a large corporation that has retained Clayton’s firm to keep a huge lawsuit out of court. There are lots of plot twists in this movie, but importantly, there is a continuing and mounting tension for Michael Clayton between doing the what he considers the right things, representing his firm’s client and shoring up his personal financial future.

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First trial jitters

This month is my two-year anniversary with Legal Aid. In retrospect,  the time has gone by pretty fast and I can’t believe that I have been practicing for two years.

I clerked with Judge Beverly Woodard in Prince George’s County Circuit Court my first year out of law school. I was exposed to so much during my clerkship, including watching attorneys battle it out in the courtroom, reading different types of motions and researching unfamiliar law. As a result, I was able to really understand how I wanted to practice.

I interacted with different attorneys with different practice styles and I was able to see what worked and what didn’t. I knew that when I started practicing, I had to be prepared for trial, punctual, meet deadlines, courteous and so much more. I was elated the day I received the call from Legal Aid with a job offer and excited to finally put what I learned to use.

I was handed several cases during my first few months and most of them were resolved prior to trial. (Looking back now, my first few cases were a walk in the park compared to what I am doing today.) I couldn’t wait to have my first trial and when that day finally arrived, I was a ball of nerves. I know that I’m not the only young attorney that feels nervous before trial; however, I have never experienced the level of uneasiness as I did before my first trial.

I remember how I felt like it was yesterday. I spent weeks preparing, constantly asked my supervisor questions and hardly slept. I wanted to make sure that I didn’t make a fool of myself in court. When the Friday before trial arrived, I walked into the office feeling somewhat prepared and somewhat confident.

But those feelings quickly faded when I looked at the docket: my first trial was before Judge Woodard. My heart immediately dropped into my stomach.

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Navigating unfamiliar territory

As young lawyers, we are confronted with unfamiliar territory almost daily. How do we familiarize ourselves sufficiently with issues presented to adequately advise and represent our client? What if Westlaw or Lexis research is not enough? What if our supervising attorneys have not dealt with the issue before either? Can we, or more importantly, should we, take the case?

I recently experienced this scenario and found that I was more than competent to handle the matter after a bit of navigation.

First, I familiarized myself with the documents and the law. I asked the client a ton of questions.

Next, I started asking questions of my colleagues at Bodie. Had anyone had a similar case? Given these facts, what would they do? What issues did they perceive? Even though no one had handled a case exactly like mine, the insight and advice were extremely helpful.

After finding that my colleagues had never had such a case, I turned to the Maryland State Bar Association and the Maryland Association for Justice listservs. As usual, these were invaluable resources and a couple of attorneys who had dealt with this issue previously responded to my posts.

There is no magic formula to researching a legal issue. Sometimes Google can be more helpful than the Annotated Code. Sometimes consulting with colleagues is more helpful than Westlaw or Lexis. Sometimes you just need to start making phone calls and asking questions.

The point is, you have to get creative. You have to think outside of the box, especially when your supervising attorneys are unfamiliar with the issue.

After taking on this matter and bringing it to a successful conclusion, I have not only helped my client and broadened my experience, but I have also helped my firm. We now have a formula for handling these types of cases. The research is done and the forms are drafted. When the next one comes in, we will hit the ground running.

Negotiations: not leisure, but not that bad

The word “negotiation” derives from French and Latin words that originally meant “business,” “traffic,” or, in the verb form, “to carry on business.” An alternate meaning is “difficulty, pains, trouble, labor.” Perhaps my favorite, however, is the literal translation from the Latin “neg — otium” — not leisure. I think that the notion of a negotiation as something difficult and the opposite of leisure is particularly appropriate.

Having been through many negotiations myself (and just recently completing a case in which negotiation was wildly unsuccessful), I have been thinking about what it takes to negotiate well and what an attorney can do to help make a negotiation succeed. To be an effective negotiator, I think the etymology is particularly useful. It is important to keep in mind that what you are about to engage in is difficult and laborious and most decidedly not leisure. Put more simply, negotiation is hard work.

Approaching any negotiation with this mindset has two benefits. First, knowing that the negotiation will be difficult means that you can prepare your client effectively for the back and forth and, perhaps, the length of time it might take to reach a resolution. Second, you can prepare yourself to engage in something difficult.

One of the most difficult things about negotiation is preparing yourself to handle and respond effectively to any counteroffer or settlement demand that your opposing party might raise. The best way to do this is to have complete command of the facts and to communicate honestly and effectively with your client about the negotiation process, which includes making recommendations about key thresholds in the process. In addition to the hard work of preparing yourself mentally, understanding your case and communicating with your client, negotiating effectively requires a complex set of skills as well as a healthy amount of common sense. I’ll offer these three broad categories as the essentials:

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