When I was a younger lawyer, I used to stop a take a few minutes to think about a case, hearing or brief that had just wrapped up and consider what went well, what went wrong, and what I could do better. I would often go to a partner and ask them, too.
As I became more experienced, this practice became more of an afterthought. It’s not that I think I know it all, I simply forget to think about it. The busier we get the less time we take for reflection on the past, positive or negative.
So after the seven-day bench trial we just completed, a colleague of mine asked: “What did you take away from this experience? What would you tell future clients about going to trial?”
“Um…well…good question,” I responded.
It actually was a fantastic question –which I then forced myself to take some time to think about, but it was not until an ex parte proof of damages hearing I had a couple weeks later that I could truly answer that question. (For my non-lawyer friends, that is an uncontested hearing on damages where you get to present whatever evidence you want of damages without another side fighting you).
As I was preparing for the hearing, thinking through how exactly I wanted to present the evidence, I had this gut feeling I needed to add an expert witness. After the client signed off, I did just that and the expert testified to the calculation of my client’s damages. The hearing went better than I expected. The judge very much appreciated the expert testimony, which was reflected in her ruling.
- After that hearing, I could answer the question of what I took away from the trial:
- Every judge is different, so be prepared to present your evidence to the strictest constructionist;
- Know the rules (the official, unofficial, and everything in between);
- Research your judge;
- Avoid any scintilla of speculation, when possible;
- Be ready to modify your presentation on the fly (while you are standing at the podium, for example);
- Do not try to read tea leaves, but do pay attention to the judge’s reactions and comments (I have found a judge’s flippant comments, intentional or not, are usually the most revealing);
- Follow your gut. This may be harder for younger attorneys, but as you become more experienced, your decisions will come through your gut reactions;
- And prepare the client for anything. A trial, like life, can throw a ton of different things at you. The lawyer is not unfamiliar with this, but the client probably does not deal with it regularly, if at all.
I’ve only included lessons that do not reveal too much about the case. I assure you there are many more.
Whether we consciously recognize it or not, each case, each hearing, each brief, teaches us a lesson. We just have to take a second to accept it.
Angela Davis Pallozzi is counsel at Offit Kurman P.A. in Baltimore.