Thomas Patrick Deaton Jr.

Attorney at Law

Thirty Lessons from Thirty Years of Practicing Law

This page of my law practice Web site will discuss thirty lessons I have learned while practicing law since 1980. In gratitude to the people who taught me these lessons, I'm passing them along to others who visit this page. I will add to the list from time to time until I finish. If my Web skills improve enough, I'll make it possible to post comments on these tips.

What would I want my lawyer to do?

The most important question I ask myself about every case is "what would I want my lawyer to do if I were the client?" Answering that question helps me complete things-to-do lists for each case. The question also helps run my office. When I started a solo practice in St. Louis, I was more concerned about having a robust Westlaw package for legal research than I was having a prestigious office address.

There are many sources of guidance in representing clients. For example, the ABA has published standards for what prosecutors and defense lawyers are supposed to do in criminal cases. Bar journals have articles with titles like "Litigating the Employment Discrimination Claim." New law school graduates can look to more experienced lawyers for practice tips. The best compass is "what would I want my lawyer to do?"

Early in my career as a public defender, I battled with judges about scheduling cases for trial. Sometimes a judge took the position that any public defender in the same office should be ready to try any case from that office near the top of the docket. I stood firmly against that idea because I would not want to go to trial with a lawyer I was meeting for the first time on the morning of trial. I would want a lawyer who had been working on my case since the arraignment.

Answering that question also works with demanding clients. I don't always do everything a client wants me to do just because the client demands it. If something is unnecessary, I can tell the client, "Look, I wouldn't want my lawyer to do that if I were in your shoes." On the other hand, deciding whether to testify is a client's decision, even if I do not agree with him. That's what I would want my lawyer to do.

"It has been my experience that persons have a basically positive direction."

The quotation comes from On Becoming a Person, a book by the psychologist Carl R. Rogers. He persuaded me that every person wants to grow and mature. Every person includes those accused of crimes. St. Louis criminal defense attorney Art Margulis told me not to forget that clients who broke the law were acting at their worst.

It is not for me to judge the people I represent. My job is to help the client become the person he wants to be on his best day. Getting to know the client is important. People responsible for even the worst crimes did not start out as criminals. Things happened to them or they made bad decisions, but every person retains the capacity for personal growth.

The Importance of Storytelling

The best way to make a point is to tell a compelling story. If the listener accepts the story, he will fill in any missing facts consistent with the story. The story also serves as a framework for the listener and teller to organize and remember complicated facts and legal principles in a case.

When I'm waiting at the courthouse, I use that time to think about what the story of my case is. E-mails and text messages can wait until I return to the office.

The movie Amistad discusses the importance of storytelling. The movie tells the story of the 1839 mutiny by enslaved people about the ship La Amistad off the coast of Cuba. Anthony Hopkins is wonderful as John Quincy Adams, who argued the case for the enslaved Africans in the Supreme Court.

I'm aware of Aristotle's discussion of persuasion in On Rhetoric. Logic (logos) is important. Legal arguments will not always fit into a story. In that case, I try to make a logical argument that reasons its way to a conclusion from axioms and definitions.

But there is nothing like a good story. Here is the story on the box of Neutrogena Norwegian Formula hand cream: "It started with Norwegian firshermen. Faced with some of the harshest, coldest weather on earth, they used a formula that delivers concentrated levels of glycerin to dry, chapped skin providing immediate and lasting relief. Five years of independent testing confirmed what the fishermen knew all along--Norwegian Formula hand cream consistently out performed other products." Neutrogena told the story of that hand cream in less than fifty words.

How to survive oral argument in the appellate courts

I have read articles and listened to CLE speakers talk about oral argument in the courts of appeals. If you want a comprehensive discussion of oral argument, find one of those articles or CLE programs. I will tell you how to survive oral argument.

Tell a story. The best oral arguments I have heard tell a compelling story, justifying the relief requested. As much as possible, I organize the important facts and legal points in the form of a story.

Prepare two oral arguments. One argument should be long enough to use all or most of my time. This is the argument to give if the judges do not interrupt with questions. The other argument is a shorter version, no longer than five minutes, in case the judges take most of my time with their questions.

Prepare a checklist of the five most important points to make, regardless of how the argument goes. As the argument proceeds, I check off each point after covering it as I tell the case story or answer a judge's question. I don't rely on my memory because oral argument can become too hectic. When I finish the checklist, I can return to my office satisfied that I made my points even if the judges didn't give me a chance to say everything I wanted to say.

The five-point oral argument checklist was a suggestion from the late Judge Harold Satz after he retired from the Missouri Court of Appeals. He told me the tip one day in his office at The Stolar Partnership during a discussion with Susan Rowe. Before using the checklist, I found that all of a sudden my time had expired, and I had to sit down with a sick feeling that I had never told the judges the most important things about the case.

What you say isn't as important as how you say it.

There's a good reason not to read an opening statement or closing argument or your brief in oral argument or an opening statement. What you say is not as important as how you say it. By "what you say" I mean the language, not the content. Of course content is more important. But I don't have to express the content with the same precision I use in writing. It's a mistake to try.

Listeners can handle only so much information. Readers can handle more complexity. A well-written prepared text such as a brief isn't going to be understood as well when read out loud.

Studies I have read or heard talk about the importance of the speaker's posture, eye contact, tone of voice, attitude, and other factors that together make delivery more important than language. How do you know how others hear you? Ask someone you trust to watch you giving an argument and comment on how effective you communicated.

Even better, contact a local college and ask for help from a faculty member who gives voice and acting lessons. I was fortunate to find Howard Orms at Southwest Missouri State University. He was able to do more with Kathleen Turner, John Goodman, and Tess Harper than with me. I learned that the best movie and stage performers developed their communication skills with years of practice.

Sign documents with blue ink.

The late St. Louis County Circuit Judge Jim Ruddy taught me this lesson. I had a court memo for him to sign when I was an assistant public defender. He wouldn't sign it while he looked for the blue ink pen he had misplaced in his chambers. I offered him my Bic pen with the blue cap and blue ink. He quickly signed the memo. When I asked him why blue ink, Judge Ruddy told me signing with a blue pen prevented any later confusion between the original document with his signature and copies.

I have wonderful memories of Judge Ruddy. I often think of Judge Ruddy when I reach for a fountain pen with blue ink to sign a letter. This lesson will become less important as electronic filing spreads from federal to state courts.

Legal writing is different from other writing in only one way.

Legal writing is different from other writing because it is important to state the conclusion (or most important sentence in a paragraph) first. I had to forget what I learned in college about first engaging the reader's attention and then building toward the conclusion. That technique is for readers who enjoy what they are reading. Practicing lawyers, on the other hand, are usually writing for a reader who wants to finish his work as quickly as possible because he has more to do in the office or at home.

Law schools teach a writing format called IRAC, an acronym for Issue, Relevant law, Application to facts, and Conclusion. That format works for law school and bar admission exams. But someone has to read those exams all the way to the conclusion. The hardest working judges will not have time to read everything. I can help the judge by putting the most important sentence at the beginning of the document and at the beginning of each paragraph. That's the best way to hold the judge's attention or make sure the judge sees the important points of my argument or motion.

Other than that distinction, good writing is also good legal writing. When editing a brief or motion, I eliminate unnecessary language, the passive voice, run on sentences, and legalese just as I would in other writing.

If my college roommate, Julian Solotorovsky, a lawyer at Kelley, Drye & Warren in Chicago, were writing this lesson, he would stress shorter sentences for legal writing. He uses shorter sentences to make it easier for the reader to comprehend complex legal problems. I agree that doing anything we can do to make legal documents easier to read is worth the time and effort.

Start appellate briefs with a three-ring notebook and certificate of service.

I used to think that appellate brief writing required large blocks of time. Procrastination was a problem while I tried to find that block of time. Then I discovered how to write a brief in smaller blocks of time. My secret was using a three-ring notebook and beginning with the certificate of service.

Word processing the certificate of service first gave me a sense of momentum and accomplishment. There was no need for a large block of time to complete the certificate of service. I could see the brief taking shape.

Word processing and a three-ring notebook allowed me to put the brief together in pieces. It also allowed me to work on different pieces at the same time. I draft one part of the brief while I edit or cite check other parts I have already drafted. I no longer have to request an extension of time for a brief I haven't started. Now I enjoy writing appellate briefs.

Typography matters.

Typography can make documents easier to read. I discovered the potential of typography in a book by Matthew Butterick, Typography for Lawyers. Until reading that book, I had little idea about the importance of fonts, line spacing, and print size. I was a Times New Roman, one-inch margins, and double-spacing lawyer.

Now I use Century Schoolbook, Franklin Gothic Book, and wider margins. I set the default margins in WordPerfect for 1.3 inches on the left and right for court documents. (I finally figured out how to use the Styles Editor in WP to change the side margins for footnotes.) I set the left and right margins at 1.5 inches for letters. I use only one space after a period. I don't use all capital letters.

The Seventh Circuit has information about using typography on its Web site (www.ca7.uscourts.gov). There you will find links to Painting with print: Incorporating concepts of typographic and layout design into the text of legal writing documents by Ruth Anne Robbins and "Guidelines for Briefs and Other Papers" written by the Seventh Circuit. According to Robbins, "persuasion includes looking good on paper."

Master legal citation forms and other details of legal writing.

I have a hard time remembering citation forms. Where are the spaces supposed to be in a citation to F. Supp. 2d.? Is the abbreviation for transcript "T." or "Tr."? I know The Bluebook contains all the details for citations, but it is now over 400 pages long and not that easy to use.

Instead of getting frustrated, I found a solution. I listed all of the examples of common citation forms I used in my practice. The list had twenty-two topics. To make examples for the list, I relied on The Bluebook, the United States Government Printing Office's Style Manual, opinions of the Missouri Supreme Court, and Bryan Garner's The Redbook. The list made cite checks go quickly.

I self-published the list of citation forms along with commentary in a thirty-page booklet called Show Me Citations. It's available for free at this Web site.

Why care about the correct citation form? It is not about being persnickety. "Citation form is a litmus test of your credibility. Judging a writer's credibility is hard. Readers draw large inferences from small clues, and citation form is one place they look." Alan L. Dworsky, The Little Book on Legal Writing 75 (2d ed. 1992).

Transitions between work and relaxation generate creative thoughts.

I have learned it's no coincidence that my most creative moments often occur while making the transition beween work and play. As a hearing officer for the Civil Service Commission in St. Louis, I write many reports for the Commission on the evidentiary hearings I conduct. My goal for the reports is to discuss all of the issues in each case. I have learned to wait overnight before delivering my report to the Commission. At some point during that extra time period, I will think of at least one important additional issue. The additional thought comes when I'm exercising after work, getting ready for bed, or taking a shower in the morning before work.

Rollo May explains his theory on why that happens in his book The Courage To Create. I can't remember his explanation how transitions yield creative thoughts. I just know it happens so I include transitions between work and play even when I have a lot of work to do.

There is a better way to cope with stress than drinking beer.

The practice of law is stressful. The stress and anxiety come from not knowing what is going to happen when a lawyer arrives at the office, goes to the courthouse, or meets with a client. After a few years of practice, it is easy to recognize where things can go wrong. In fact, anticipating and preparing for what can go wrong are important for a successful practice. But the lawyer has to practice law without control over what happens in the office, in the courtroom, or with the client.

One way to cope with the stress is to meet other lawyers for drinks after work and talk about problems. It's no different from meeting law school classmates for beers after the law library closes.

The problem with drinking beers with other lawyers is that drinking treats the symptoms but not the causes of the stress and anxiety. The cause of my stress was thinking about all the things that could go wrong in the practice of law. I learned that the cause of my stress was distorted thoughts. My twisted thinking, not actual events, was upsetting me.

I learned to recognize my twisted thoughts. It's not hard because they occur in the same forms with most people. I learned to untwist the negative thoughts with cognitive behavioral techniques. I had the help of The Feeling Good Handbook by David D. Burns. It should be required reading in law school.

The curate at my church told me to read the Serenity Prayer. I came to accept that many things in life were out of my control. I had been practicing law with the belief that if I worked every week at being a better lawyer, my experience and skill would help me control what happens.

I changed. I stopped worrying about clients who ignored my advice. I stopped expecting people to change behavior after I talked to them. I learned to be comfortable in situations I could not control.

Trust the future.

I learned this lesson as an assistant public defender while trying to manage eighty cases at the same time. That was my first job after law school. It seemed hopeless to keep up with all of those cases, many with clients in jail. I worked as hard and efficiently as I could every week, attacking my things-to-do lists.

Surprising things started to happen. One week the court cancelled all trials because of a twenty-two inch snowfall. I had two serious felony cases dropped by the prosecutor on the morning of trial in another week. The prosecutor also dropped charges in murder and arson cases. Less dramatic events gave me more time on other cases.

Throughout my career, when I have been extra busy, something good has happened to keep my workload manageable. But the good things don't happen unless I work hard. When I am not as prepared for a court proceeding as I want to be, I find myself executing what I need to do in the courtroom because, as St. Louis County Associate Circuit Judge Ellis Gregory told me, "You know more than you think you know."

The same holds true in my life outside the law practice. Even when bad things happened (cancer diagnosis, job loss, death in the family), I found a way to get through with the help of my family and friends. I took comfort from two Bible passages. The first is from Mark 4: 35-41 in which Jesus's disciples were afraid of sinking in a boat during a storm while Jesus slept in the stern. The second is from Paul's letter to the Corinthians, 1 Corinthians 10: 13, which says, "No testing has overtaken you that is not common to everyone. God is faithful, and he will not let you be tested beyond your strength, but with the testing he will also provide the way out so that you may be able to endure it."

Trusting the future beats the alternative.

Nobody has all of the answers--not even at Harvard.

I took a year off from the practice of law to obtain a masters in public administration from the Kennedy School of Government at Harvard. I took courses in leadership, media relations, political management, data analysis, and other areas helpful for work in government and public service. I was surprised that so much of what I studied was relevant to the practice of law, especially to the management responsibilities lawyers often have.

I went to Harvard with a list of problems I wanted to work on. The classes were the most interesting I had ever attended. We studied cases, not legal cases, but descriptions of public sector problems in which well-meaning public servants failed or were unable to do what they were supposed to do. Many of my classmates had been working in government and public service for several years. I quickly discovered they were looking for answers to the same problems I was.

What a relief it was to find that all of the smart people at Harvard did not have answers either. My posture got better with the weight of not having answers lifted from my shoulders. I learned it was not my job to have all of the answers. My job was to find clues to the big picture by asking the right questions, by listening to people on the factory floor, so to speak, by holding myself out as a person willing to listen to opposing or controversial ideas, and by designing an open decision-making process that engaged others to participate by sharing their experiences. Asking the right questions was more important than being a know-it-all.

Lawyers look for forms to avoid re-creating the wheel. Looking for a form or checklist someone has used to conduct a cross-examination of an informant in a drug case, for example, is a start but not the end. The person who developed that form does not have all of the answers even if he went to Harvard Law School. The lawyer in charge of the case is responsible for leading his trial team in developing a list of questions. Lead counsel will be surprised by good suggestions for cross from the paralegal or student intern on the trial team if he asks them for help.

When handling a case with publicity, remember everybody doesn't follow the news.

I cringe when I see a lawyer on television giving a detailed statement about the defense of a criminal case soon after the accused was arrested. I know the lawyer is relying on what people told him, and the lawyer has not had adequate time to investigate whether his sources are reliable and accurate. I don't recommend making a detailed statement even if the lawyer believes it is necessary to lessen the negative impact of what law enforcement officers and the prosecutor have said to the news media about the accused or the evidence in the case.

In a high publicity case, it will seem like everyone in the community is watching or reading about the case in the news media. It seems that way to me because I follow the news media coverage in order to know what prospective jurors may have read or heard. My friends will comment that they saw me on television or read about my case in the newspaper. But I am convinced the great majority of people don't follow the news that closely.

When I was first running for Congress, my campaign purchased space on large outdoor billboards to increase voters' recognition of my name. There was nothing on the billboard but my name and "U.S. Congress." Soon after the billboards appeared, people told me how much they liked my picture on the billboard. I never had my picture on any billboard. They had confused me with another candidate who had his picture on billboards. No matter what I said, they insisted it was my picture.

I have never had success trying to manage the news coverage of anything I did as a lawyer, judge, or candidate for office. I keep hoping I will have a better lesson to post here in the future. Until then, I am careful to follow Missouri's Rules of Professional Conduct on what I say on the courthouse steps. I am also careful about what I write in a pre-trial motion. I follow the pre-trial publicity, but I don't let it discourage or intimidate me from doing what I need to do to represent my client. As my dad said, "What's important is that your name is spelled correctly."

There is never enough time to do everything.

This is a lesson I learned when I was an assistant public defender in St. Louis County. It has special application to practicing law. The more experienced I became in criminal defense, the more ideas I had about what I could do to defend a case. Speakers at seminars sponsored by the National Association of Criminal Defense Lawyers provided me with state-of-the-art trial techniques. Sometimes I would think of something I could have done after the case concluded. This lesson is a version of the saying, "Hindsight is 20/20." As Thea Sherry, an assistant public defender in the office then and a St. Louis County Circuit Judge now said, "There will always be one more thing you could have done."

A corollary to this lesson came from my wife while I was running for Congress: "It doesn't have to be perfect to work." Instead of worrying about all the things I could do in a perfect world to defend a case, I concentrated on doing the most important tasks first. For each task, I did what was most important. For example, making a checklist of topics for questioning a witness when there was not time to prepare a detailed outline. Instead of feeling anxious or guilty about not having a detailed outline, I relaxed by knowing my questioning did not have to be done perfectly to be effective.

Yelling doesn't help.

Whatever the situation, it doesn't help to yell at clients, office staff, other lawyers, court clerks, or jurors. I learned this lesson as a deckhand on Mississippi River towboats while I made money for law school. Captains and first mates who yelled at crew members did not inspire confidence or encourage harder or better work. It holds true for the practice of law. Yelling only makes someone less likely to do what you want them to do.

It's tempting to yell to communicate displeasure and seriousness with someone's actions. Clients have sometimes frustrated me by not following my advice. I try to remember that my job is to help the client, not release my frustration or vindicate the advice I gave.

Change is not easy for anyone. We all like what we're used to--sometimes even if it's self-destructive behavior. Often my job as a lawyer is to help a person change, which requires patience and understanding. If change were easy, what would lawyers do for clients?

Never give up.

I have a cartoon in my office. A crane is standing in shallow water among reeds and cattails. The crane has a frog in its long beak, and the crane has started to swallow the frog head first. Although the frog's head is no longer visible, the frog's front legs extend from the beak and have a choke hold on the crane's neck. The caption reads, "Don't ever give up!"

"Having hope," writes Daniel Goleman in his study of emotional intelligence, "means that one will not give in to overwhelming anxiety, a defeatest attitude, or depression in the face of difficult challenges or setbacks." Hope is "more than the sunny view that everything will turn out all right"; it is "believing you have the will and the way to accomplish your goals." Doris Kearns Goodwin, Team of Rivals 631 (2005).

The jurors are our friends.

When I began practicing law as an assistant public defender, I worried that jurors would convict my clients based on factors other than the evidence. I didn't see jurors as friends of the defense team. My attitude changed after I joined the National Association of Criminal Defense Lawyers.

Experienced NACDL lawyers taught me how important my attitude was. If I thought the jury was not going to be fair to my client, my body language and demeanor would give me away during the trial. The only way to avoid that was to believe the jurors were our (the defense team's) friends.

As I tried more cases, my belief grew stronger. Jurors recognized the tremendous responsibility they had and wanted to do what was right. My job as trial counsel was to show them how to do what was right.

This lesson doesn't diminish the importance of jury selection. It is the most important part of the trial because a lawyer can't change the belief system jurors have developed over a lifetime of experiences. Jury selection gives lawyers the opportunity to eliminate people likely to prejudge the evidence and keep people whose life experiences have taught them the government sometimes makes mistakes.

Help the judge remember.

I served as a circuit judge in Greene County in 1998 after Governor Carnahan appointed me to fill a vacancy. It was interesting to see the view from the bench after so many years as a lawyer. I saw how important it was for the lawyers to help the judge remember because the judge was responsible for many more cases than any lawyer was.

The best example was handling routine matters at the start of most mornings. Lawyers would appear on motions involving routine matters such as discovery disputes that did not require testimony. (A routine matter should not take longer than ten minutes for both sides to argue or it is not routine.)

Pressed for time, some lawyers would go right to the heart of the matter without giving me any background information. The lesson I learned from being a judge was that a lawyer should introduce himself, tell the judge who he represented, tell the judge what the case was about, and tell the judge what he wanted the judge to do. What a help it was to me as a judge when a lawyer started with that checklist.

I will give an example. "Good morning, your honor. I'm Patrick Deaton, and I represent the plaintiff in this case, who was injured when an ambulance stretcher collapsed on the way from his house to the ambulance. Plaintiff is here today to ask the court to order the defendant manufacturer of the stretcher to release information in its possession about similar stretcher collapses during the previous ten years." With that background, the lawyer can proceed to give his argument why the discovery request is justified.

Don't try cases alone.

We have all heard the expression "Two heads are better than one." This expression has special application in a jury trial. I am surprised whenever I see a lawyer trying a case alone in the courtroom next to the person he is representing.

It is an understatement to say there is a lot to do in a jury trial. Someone needs to help the lawyer with jury selection because a lawyer does not have eyes in back of his head. And how can you have a good conversation with someone when you are taking notes? Someone needs to keep notes throughout the trial in case it is necessary to file a motion for new trial. Someone needs to keep in touch with the witnesses to let them know when it is time to come to the courthouse. Someone needs to talk the client's family members who are at the courthouse. Someone needs to operate the audiovisual equipment. But all of these things can be done by someone who is not a lawyer so the lawyer can focus on doing what only a lawyer can do in the courtroom: speak in court on the record as the client's attorney.

I learned about the power of a trial team while defending two capital murder cases. The seriousness of the atmosphere in the courtroom was like nothing I had experienced before. All the forces of the Government were there seeking the death penalty for another human being. On one of the cases, I was lucky to have the help of Susan L. Chapman, a gifted trial lawyer who now practices in Sarasota, Florida. She taught me how important it was for the jury to see that more than one person in the courtroom cared about the person I was representing, regardless of the case, but especially in a death penalty trial. It takes more than one lawyer to change the atmosphere in the courtroom.

It is not difficult to assemble a trial team from other lawyers and law students who want trial experience, legal secretaries, investigators, and friends in between jobs. In one trial I had help during jury selection with a recent medical school graduate who was going to begin a residency in psychiatry and was interested in forensic psychiatry. She was so interested she volunteered to help and stayed for the entire trial.

Finally, there will be anywhere from six to twelve heads in the jury room deliberating for a verdict. They will have watched the trial and thought about more things than one lawyer can think of. It is not a good idea to be alone in the courtroom unless you are Gregory Peck trying a case on a movie set.

Master details by practicing on ordinary cases.

Being a lawyer means practicing law. Every day will be a challenge. Every week offers an opportunity to be a better lawyer than I was the week before. While some cases might not be as interesting as others, every case is an opportunity to prepare for a case before the United States Supreme Court. "A great lawyer's value is not handling great cases, but in making ordinary cases great," according to Greg Cusimaro.

I don't divide my caseload into cases that are important, requiring special treatment and extra attention to detail, and those that are ordinary, not requiring extra care. The time to practice is on an ordinary case so I will be ready when an important case comes. I try to develop good habits on ordinary cases so I will be prepared for difficult cases. Good practice makes for good habits.

Take telephone calls, for example. As an assistant public defender I learned to make a note in the file of every telephone call I made or received in a case. At first that was a chore I did not always do because it took too much effort. I persisted in developing that habit because of how helpful it was to have a record of what I said or what people told me. It was also helpful to have a record of the number of times I called someone and did not receive a response. I kept records of all calls, not just the calls in murder cases.

Making notes about phone calls became easier as I practiced the habit. I noticed that there was usually plenty of time to start the note after I placed the call while I waited for someone to answer the phone. Since typical phone message pads are too small, I use lined pads that are 5 1/2 by 8 1/2 inches. With a two-hole punch and a two-prong fastener, I keep them in the client file in chronological order with correspondence.

Summarize the theme of the case in a few words.

I learned this lesson from Stephen Rench, a criminal defense lawyer in Denver, Colorado. He wrote the best book on trying a criminal case I have ever read: The Rench Book: Trial Tactics and Strategy. I cannot understand why the book is out of print.

According to Rench, a lawyer probably does not have a sufficient "handle" on the defense position until he can state it in a few words. The Rench Book at 9. Without that grasp of the case, the lawyer will have difficulty making the defense "understandable and persuasive to a jury." Id.

I test my grasp of a case by completing a sentence beginning with "This case is about." If I cannot do it in one sentence, I keep working at completing the sentence in only a few words. (Even though Rench wrote about defending criminal cases, summarizing the theme in a few words applies to civil cases as well.)

Let's take an armed robbery case, for example. When summarizing the case for the judge at a motion docket, I would tell the judge, "This is a first degree robbery case." But I would not describe the case that way in jury selection or opening statement. Depending on the facts, I might say, "This case is about how easy it is to misidentify someone," or "This case is about a false confession." I not only want the jurors to know what the defense is from the beginning of the trial, I want them thinking that the citizen-accused is not guilty.

Don't worry about being popular.

Henry Clay famously said, "I had rather be right than be president." A lawyer has to get used to being unpopular sometimes. It is inevitable that people will get angry when someone raises an issue that other people don't want or are afraid to discuss. Instead of confronting the issue, people will attack the speaker to discredit him and silence the discussion before it begins. This is such a strong group dynamic that anyone who doesn't have some people mad at him should wonder if he is helping a group avoid discussing issues that need discussing.

One way to be unpopular is to offer an opinion about a group to which the speaker does not belong. For example, if a white person comments about the behavior of black people or if a man comments about women or if someone under forty comments about senior citizens, I can guarantee that the targeted group will join together to attack the speaker regardless of the merits of the comment.

As a member of Congress, Henry Clay could decide what side to take on a issue. A lawyer often does not have that choice because the lawyer must be an advocate for the person he represents. John Adams, for example, defended the officer commanding the British soldiers who fired on Massachusetts residents in the Boston massacre.

It has been my experience that in being unpopular I sometimes earned the respect of others who were mad or impatient about my advocacy at the time. It does not hurt a lawyer to have a reputation for standing his ground and doing what needs to be done.

Being unpopular is easier said than done. I took great comfort from a sermon by the rector at my church. His theme was remembering to whom you answer for your life. I also think about earning the respect of my young granddaughter. I have even imagined going to the courthouse with my best friends. If you cannot identify with my thoughts, think about the Normandy cemetery scene at the end of Saving Private Ryan.

Learn to excercise leadership without authority.

Exercising leadership is not the same as exercising authority. Someone without authority can exercise leadership. A staff meeting will illustrate this point. There will be a person with authority presiding at the staff meeting such as the head of the office or office manager. That person will have authority to set the agenda and to open and close the meeting. Think about what happens during the meeting.

In a typical law office staff meeting, employees give their opinions about suggested changes or decisions for office operation. A secretary raises an important issue on point with the discussion. A senior lawyer inappropriately jokes or criticizes the secretary. There is no follow up discussion on the secretary's point. The person in charge of the meeting says nothing. The meeting continues to the next agenda items. What are the chances the secretary will offer her insight in future staff meetings at that office?

What happened in that meeting? The leader failed to protect a member of the group from undeserved attack. The message the secretary heard was that her views were not welcome. Other staff members took note of what happened and may decide to limit their participation in the future. The office will not be able find workable solutions to problems if key members of the office do not contribute.

Consider a different scenario after the inappropriate comment. Someone else, who is not in charge of the meeting, blows the whistle, so to speak, on the senior lawyer's comment. The intervenor says that the secretary's point was well-taken and deserves serious discussion before we proceed to the next agenda item. An excellent discussion might follow on the secretary's idea. So, without any authority, the intervenor exercised leadership by keeping the discussion on topic and preventing someone from being marginalized.

Exercising leadership without authority takes practice. Not every intervention will be successful. Some types of intervention may be more successful than others. But there are opportunities to practice every time each of us attends a gathering of more than two people. If you want to know more about exercising leadership with or without authority, Google "leadership" and "Ron Heifetz."

Prevent conflict from erupting at the worst possible time.

I used to spend time trying to avoid or smooth over conflict. All I got for my effort was a conflict explosion at the worst possible time. I learned the importance of managing conflict so that good conflict energized people and bad conflict was confronted at the earliest opportunity. The good news is that conflict is fairly predictable.

The first step is to recognize conflict. I chuckle to myself whenever I hear someone describe a problem as a "personality conflict." It has been my experience that so-called personality conflicts are actually fundamental disagreements about values or how best to do something. What masquerades as a personality conflict is an underlying disagreement about how to do things that must be discussed before a blow up occurs.

For an example, let's take yardwork at my house. My wife and I have a conflict over how the yard should look. She loves to prune bushes, trees, and lawn edges. She wants everything to be neat. She hates ivy, pachysandra, vinca, and groundcovering plants in general. I am a let-a-thousdand-flowers-bloom kind of garderner who looks at groundcover as weed control. Do we have a personality conflict or a basic disagreement about landscaping? My wife and I have been married for over twenty years, and the yard looks better now than it ever has.

Recognizing conflict is easier than recognizing the underlying issue. Finding the underlying issue is key to deciding whether the conflict can be managed or must be resolved before it does damage. Conflict is not always bad.

Our legal system uses courtroom conflict to find facts. Everyone agrees that is a good use of conflict. Conflict can be a good sign for a group if it occurs when people care passionately about what they are doing. Conflict is not a good sign if people care more about themselves or about winning than they do the success of the group as a whole.

See yourself as others see you: the power of video.

In his poem "To a Louse," Robert Burns asked God for the gift to see us as others see us. He said this prayer while sitting in church watching a louse on the bonnet of a pretentious woman. The last verse, translated into English, prays

So often we are not doing what we think we are doing. My best example is swimming. When swimming laps for exercise, I concentrate on my technique with the goal of moving through the water with less resistance. I have been surprised more than once by a video of my freestyle stroke that shows me doing something (poor head position, for example) that I did not think I was doing. I could not believe what I was seeing on the video.

The same holds true in the courtroom. Lawyers and witnesses are doing things that annoy judges and juries, but the lawyers and witnesses do not realize how their mannerisms distract from what they are saying.

Robert Burns's 1786 prayer has been answered by video. It is now possible to see ourselves as others see us, painful as it is sometimes. A witness can learn the importance of good posture on the witness stand and other lessons after watching ten minutes of himself on video. No amount of his lawyer's suggestions carries as much weight as a short video of practice testimony.

If video is not an option, use a friend or colleague whose judgment you trust to watch you or read what you have written. Listening to the opinion of another person gives us the power to see ourselves as other see us. Like the louse on the bonnet, the fix probably will not be difficult.

Talent is overrated; effort isn't.

My granddaughter, who is in the first grade, doesn't enjoy school or after-school ballet lessons. She thinks she is being tracked as a poor reader and does not have the talent she sees in the others in her ballet class. I don't even remember where I attended first grade, but I understand her feelings. We all have times when we find ourselves someplace where we don't think we belong.

On the way to ballet class, I tried to explain that talent is overrated. I explained how I went from being the slowest swimmer on a fifty-man college team to being the slowest swimmer on a twelve-man team. I earned a varsity letter in swimming in my first year of college for surviving the season. I encouraged her to focus on making a good effort in class by listening to her teacher and watching her fellow students dance. I assured her she belonged in the class and could discover her potential if she tried to do her best each class. I tried to persuade her that what appeared to her to be more talent in other children was actually the result of more practicing.

I wanted to tell my granddaughter about Harry Truman. He never thought he deserved any of the leadership positions he held. When he was an artillery officer in World War I, he endeared himself to his men with his determination to be an officer worthy of their trust. All of those soldiers survived the war under his command. They never forgot how hard HST worked for them. They were devoted to him for the rest of his life in public service.

Harry Truman never got discouraged thinking how other people could do a better job or were more deserving of the positions he held. He accepted his responsibilities and dedicated himself to mastering whatever job he held. HST proved over and over again in each position that talent was overrated and not as important for success as good effort.

Good effort in ballet, reading, swimming, or practicing law involves struggle. Learning doesn't come easy. When I'm frustrated trying to do something (like building this Web site from scratch), I take a few deep breaths while reminding myself that finding something to be hard is a sign I'm learning what I need to know--not a sign that I lack talent. I have learned to recognize struggle and frustration as welcome signs I'm making myself a better lawyer.

My granddaughter wants to be an artist because "I won't have to work so hard." She is in for a surprise. Learning new skills is never easy. Good effort is more important than talent. Who you are is not as important as how hard you try. So embrace failure and frustration.

Questions are more important than answers.

It's more important to ask the right question than it is to know the answer to a question. Knowing the answer to the wrong question usually isn't that helpful. Asking the right question is key to solving any problem. Too often someone who thinks he has an answer hasn't asked the right question to solve whatever the problem is. An example is a lawyer who fails to consider whether a statute has been amended or a court decision overturned since the last time he researched the same issue.

I saw Senator John McCain questioning a witness in a 2013 Senate hearing. Senator McCain was convinced the surge of extra troops deployed in Iraq was the key to a successful conclusion of United States' involvement in Iraq. He wouldn't listen to a contrary view of the surge from the witness. He was so sure that a troop surge was the answer that he advocated for a troop surge in Afghanistan. Even if he were right about Iraq, Senator McCain didn't seem interested in asking whether the situation in Afghanistan is anything like the situation in Iraq at the time of the troop surge there.

The practice of law is all about spotting issues--in other words, asking the right questions. Recognizing an issue doesn't guarantee a good result because the lawyer still has to find an answer. But the lawyer is more likely to be successful in that situation (since he asked the right question) than if he completely misses an important issue.

No need to stay up at night worrying whether all issues have been spotted. Checklists are helpful. A checklist for a specific area of law can remind the lawyer where to look for legal issues. (In a contract case, the lawyer can rely on his outline from contracts class in law school: offer, consideration, acceptance, etc.)

I recommend a "big picture" checklist as well. My big picture checklist includes what's my job?; what's the product?; what's the work for the group?; what's the historical context?; what are the ethics and responsibilities here for me?; who would have had experience with the same problem?; how is a group mirroring a larger social problem?; what is the hidden issue?; and what if I am wrong or the test is wrong? Remember to keep testing the checklist and asking what questions belong on the checklist.