Passion for the law cannot be taught
At some point, just about every law student or new lawyer must choose between trial or transactional work.
“The law has a place for everyone,” said Milwaukee lawyer Howard Schoenfeld of DeWitt Ross & Stevens. “There are lawyers who do great work drafting contracts and complicated agreements. They’re bright. They don’t enter a courtroom.”
But Schoenfeld is different — he’s a trial lawyer. That’s all he ever wanted to be since his teenage years, and he can’t imagine doing anything else.
Trial lawyers are rare breed. They represent a minority of lawyers as a whole. And they’re both born and made.
That’s according to a handful of trial lawyers who recently talked to Wisconsin Law Journal about the qualities necessary — not to be a good trial lawyer, but a great trial lawyer. Here’s what they said it takes — in no particular order.
Trial work is a calling, in Schoenfeld’s opinion.
“The people I know whom I consider to be great trial lawyers, to a one, have passion for what they’re doing, because if they didn’t they couldn’t endure the incredibly long hours and the sacrifices that must be made,” he said.
“It requires selfless dedication.”
If you don’t have passion, it can’t be learned or acquired, said Amelia McCarthy of Gass Weber Mullins in Milwaukee.
“You need to roll up your sleeves and make things work,” she said. “You can’t hide from the bad facts. And if you don’t have that competitive nature, I would think you’d get bored with it and eventually wouldn’t want to do it anymore.”
This means many things. It can mean not flinching when the other side hires the “big guns,” said Victor Arellano of Madison’s Arellano & Phebus, who’s often up against big-firm lawyers from Chicago, New York or Minneapolis.
It also means having thick skin, said Milwaukee lawyer Maureen McGinnity of Foley & Lardner.
“You need to like to debate and argue and not be off put by that,” she said. “You’ve got to engage in arguments and be able to do that on your feet. You’ve got to love a good fight.”
It also means not being afraid to actually try a case, said McCarthy. So few civil matters are tried these days that it can be easy for lawyers to become unfamiliar with a courtroom.
“It’s called the ‘squishy sock syndrome,’” McCarthy said, “where a lot of people can do the pretrial work, but as they start coming closer to trial, they become nervous.”
The antidote is confidence, which isn’t arrogance but simply “knowing who you are and how you’ll present the case,” she said.
“It comes from the knowing the facts and the law on your side,” McCarthy said. “So it’s all about preparation.”
Creativity is huge, according to McCarthy. She drew extensively upon her creativity in a recent accounting malpractice case, finding ways to keep jurors engaged over a four-week trial of mostly extremely dry, technical subject matter.
“Part of being a great trial lawyer is to be creative in how you’ll present the case,” she said, “so you can make the complex simple, and you can present your most challenging issues in a meaningful way that will resonate with jurors.”
You have to be willing to do the hard work, said Arellano, seeing cases through every stage and occasionally coping with setbacks. Cases can take years sometimes, requiring patience and perseverance.
5. Deductive reasoning
This allows you to take disparate facts from many sources and put them together in a comprehensible story, McGinnity said.
“Investigating and preparing a case for trial, to me, is a lot like putting together a puzzle,” she said. “You have all these pieces. And you’ve got to do the work to put them together to tell your story.”
This goes hand-in-hand with project-management skills, McGinnity said. “Not just from a budgetary standpoint, but being able to manage a lot of moving parts, especially in the bigger cases. …
“You have to be able to juggle simultaneously a lot of different concepts and be able to think on your feet so you don’t walk into traps.”
McCarthy refers to this quality as “wisdom,” and defines it as “the ability to effectively manage kind of a multi-level chess board.” Wisdom isn’t just limited to those with gray hair. It exists in lawyers of any age who know instinctively what will sway jurors.
6. Social skills
Collaboration skills are critical, since just about every civil case that’s tried today involves teams of attorneys. It means “being able to work with people and get the best out of them,” Schoenfeld said.
It also means using empathy to bring out the best in clients.
“You’ve got to spend some time with your client,” Schoenfeld said. “I do it because the more I know that person, the more I can feel for him, and the more I can use words to describe him before a jury that I believe to be true. If I’m credible, and they believe I really care about this person, then they’re going to care about him, too.”
He added, “If I don’t like them initially, after I spend more time with them I often find things about them to like.”
“You have to be 100 percent honest, 100 percent of the time,” McGinnity said. “If the judge and jury think you’re trying to pull a fast one, you’ve lost all credibility. You always have to take the high road.”
8. Communication skills
This means stellar public-speaking skills, said Arellano.
“You can a have a great case,” he said, “but sometimes, if the jury doesn’t like the delivery of your case, you’ve got a real problem.”
It also encompasses listening skills, McCarthy said. It’s always surprising to her, she said, how often attorneys read from their list of prepared questions without actually listening to a witness’ response, thereby missing critical evidence.
9. Organizational and technological skills
Judge and jurors hate waiting for attorneys who dig through files looking for a document, McGinnity said.
As for technological trial tools, punctuating your presentation will reinforce key points to the jury. You can and should do this with technology – but methods as low-tech as flip charts can be equally effective.
Schoenfeld said ability with technology is essential because it’s such a powerful tool to reach jurors, especially those who tend to be younger and who use it often themselves. But a slick PowerPoint presentation can still flop if it’s shown during a lackluster closing argument.
10. A willingness to work hard and learn
“A really good trial lawyer lives on his instincts, judgment and perception, often times making decisions on the spur of the moment,” Schoenfeld said. “Those three gifts separate the really good trial lawyers from the rest of the pack. That said, there are many lawyers who don’t have those gifts, who work very hard to try to become good trial lawyers. They win cases because they commit themselves to learning the skills and working hard to perfect them.”
To that end, he recommended Judge Ralph Adam Fine’s book, “The How-to-Win Trial Manual,” and finding a mentor. Schoenfeld’s mentor is Milwaukee lawyer Alan Marcuvitz, who at age 79 is still “going gangbusters,” he said.
Mentors are critical, McGinnity agreed. But, “There are a lot of successful trial lawyers who have many different styles. We don’t all need to be clones,” she said. “The storytelling can range in the level of drama and detail. We don’t all have to be Garrison Keillors to capture the judge’s and jury’s attention.”
Talking to jurors after they reach a verdict is also a great way to learn how to improve, she said.
“Workshops and treatises can be helpful to teach evidentiary rules and the bare minimum,” McGinnity said. “But I don’t believe that’s how you learn to be a great trial lawyer. You learn that by observing, practicing and trying cases.”