the professional development imperative: ongoing training...

11/10/2017 The Professional Development Imperative

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The Professional Development Imperative: Ongoing Training Keeps New Lawyers

Invested

From Washington Lawyer, July/August 2015

By Sarah Kellogg

The secret of law school is that no one really comes out prepared to

practice law. The justice system is far too arcane and complex to be learned

in a lecture, and the administrative intricacies of jurisprudence are best

taught by watching and doing rather than by reading and discussing.

Certainly, legal analysis, research, and writing—law school’s meatand

potatoes subjects—are essential in a legal career, but so are filing

depositions, knowing brief page limits, and figuring out court procedures by

asking the clerk’s office—with a telephone call. Administrative minutia has

always accounted for so much of the daily practice of law, and most of it is

only learned in the trenches.

For today’s lawyers, the challenge is even greater. New lawyers need to manage the legal bureaucracy but

also be well versed in social media, Google Scholar, and the Cloud as law firms, large and small, and

government agencies shift increasingly to the Internet. It is surely a brave new world.

“We all learn on the job,” says Rebecca Gray, who was an associate at Gibson, Dunn & Crutcher LLP before

going off on her own at GrayLegal PLLC. “I learned so much more by doing than anything else. The most

valuable training I got at Gibson Dunn was working closely with extremely talented, experienced litigators and

watching how they did things.”

Then how best to transition from law school to lifelong learning? Experts say the answer is simple: A robust

personal learning and training strategy, no matter if you’re a solo practitioner, inhouse counsel, biglaw

associate, or government attorney. Such an investment improves productivity, fosters business expertise, and

fortifies the hourly value of lawyers in the eyes of both their senior colleagues and clients.

In the past, the legal industry’s professional development model centered on the associate apprenticeship and

mentorship system. A critical component has always been the mentor who was equal parts confidante, career

counselor, and case whisperer. New lawyers were given time to grow into their roles through onthejob

training, nurtured under the watchful eye of a senior attorney.

Things changed after 2008, especially in big law firms. Clients were no longer interested in paying full freight

for associates who were learning on the job. Law firms found themselves secondguessing the conventional

route associates took to partnership, a path that had been forged decades before. Postrecession, the

mentorship was too deliberate and slow. It devoured the time of both mentor and student. And, most

disturbingly, the time wasn’t billable.

“The recession shifted the power to clients in the bigfirm world where firms had always been in the driver’s

seat,” says Daniel M. Mills, assistant director of the D.C. Bar Practice Management Advisory Service. “They

were clear that they couldn’t staff their cases with associates and train them at the same time on their dollar.

Partners weren’t delegators anymore, they had to practice law again. There wasn’t as much time for

mentorship.”

A new professional development model was needed for this new era. The majority of lawyers and law firms

understood that professional development adds value in building a broader knowledge base for the firm as

well as an internal and external “brand” for lawyers. The challenge was in redesigning internal programs for

this new age of thrift, productivity, and prosperity.

“As the industry moved past the recession, we continued to focus on continuing legal education (CLE), but

we’ve increasingly directed our attention to leadership and business development skills for associates and

newer partners,” says Joseph M. Maguire, professional development and continuing legal education manager

at Reed Smith LLP. “Out in the marketplace, they have to have a level of credibility with clients, who expect



them to be well versed in the practice subject matter but also in the other key elements of client management.

Can you effectively budget and run my matter? Do you have good client service skills? Can you be a trusted

advisor?”

Given the significant pressure to prove to clients that associates and junior partners are worthy of their hourly

rates, most new lawyers have embraced inhouse training programs with gusto. Acquiring new skills, tactics,

and knowledge to advance client interests is the surest way for these lawyers to convince clients of the value

of their abilities. It’s also a strong risk management strategy for firms still ironing out the kinks from the

economic downturn.

Yet, not every firm has embraced the accommodation in professional development. Smaller firms face

financial pressures, and solo practitioners are on their own. Some doubt that investing in business

development and leadership training for associates and junior partners will pay off over the long term,

especially if it comes at the cost of billable hours. Instead, many firms still rely on a combination of mentoring,

CLE courses, and periodic professional development seminars to flesh out their professional development

practices.

“The amount of time and energy that people have in firms to devote to skills training has just gone down,”

says Michelle Richards, a Washington, D.C.based executive coach and former lawyer who has been

coaching lawyers and other highachieving professionals since 2007. “[You’re] lucky if you’re able to find

somebody who has the time inside the law firm for that kind of mentoring. People feel so pressured by their

billable hours that if you’re going to ask someone to give you time, it’s going to have to be essential to the

firm.”

Determining what’s essential has become a critical test for most professional development programs in large

and small firms, as well as in government offices, and it often presents some problems for the talent experts

who have to justify hours and days attorneys spend away from the office. Learning remains one of those

endeavors where only the most concrete instructional programs can be easily quantified—and billed to a

client.

Even so, there is a recognition that the lifelong learning movement is here to stay, which may account for why

so many new lawyers are taking command of their own professional development, shouldering the cost of

acquiring new skills and tools. This is especially true with Millennials who bring a 21stcentury understanding

to the urgency of staying relevant through marketing and social media.

Ultimately, law firms, government agencies, and inhouse offices that look to the long term are more likely to

invest in professional development programs that nurture culture and build leadership, while still remaining

focused on the competing pressures of client development and budget cutting. Talent development is harder

to sell if the firm’s goals emphasize shortterm gains or budget balancing. Like so many factors inside firms,

professional development is becoming a clear differentiator for both associates and partners as they weigh

whether to join or stay with firms.

A Wealth of Options

The stated purpose of most professional development programs is to provide new lawyers in any size firm or

government office with the skills they need to both be ready and able to begin their work. These programs

help associates integrate into the firm, absorb its culture, and get to know its people, including those in other

offices and other countries. Most importantly, these programs are designed to turn novices into contributing

members of the organization.

There is no onesizefitsall development program that can be equally as effective for a sole practitioner as for

an associate in the largest of firms. Rather, talent development programs must be tailored to the firms and

individuals they serve, reflecting the culture and priorities of each firm.

While associate mentoring and associate development programs are often used interchangeably, they are not

the same. Associate development programs are an extensive package of programs that educate new lawyers

to be a part of the firm and participate in its work. Mentorship is based on building a relationship between a

senior partner and an associate to share resources and answer questions.

Despite the recent push for more variety in professional development offerings, mentoring has been and

continues to be the gold standard for training associates and junior partners for many law firms. Around as

long as lawyers have been practicing law, mentoring remains a key ingredient of the learning process for

associates because it emphasizes on developing personal relationships between associates and partners.



At Feldesman Tucker Leifer Fidell LLP, a midsize firm that specializes in family law and health care law,

mentoring is a crucial part of the culture—and an essential element to the successful development of its corps

of associates and junior partners. Each partner is assigned an associate, and provides the kind of soupto

nuts guidance that encompasses everything from how to fill out time sheets to how to deal with abusive

clients.

“From the management perspective, your lawyers are your most valuable asset,” says Jonathan Dana, co

managing partner at Feldesman Tucker. “You want to grow them and help them succeed. At this firm, it’s

important that everybody succeed. Family law can be kind of tough because you end up absorbing a lot of

emotional stuff, and you need to be prepared for whatever comes. The mentoring helps.”

For Elizabeth Selmo, a family law associate at Feldesman Tucker, the firm’s culture of collegiality is a potent

force in growing her career. “It’s so helpful to be able to get off the phone and just go and revisit what made

[the case] challenging,” Selmo says. “It’s important to be able to understand what’s the legal piece of the

problem and what has to do with the client. I appreciate getting advice on how to help the client through it.”

An advantage of mentoring over heavily scheduled development programs is its ability to manage matters

and how lawyers should act in theory and practice. “I think there’s always going to be a major seasoning

process,” Dana says. “You can learn the law, but a lot of it is discretionary and based on broad statutory

provisions. What really is important in our business is experience, seeing something 5, 6, 10, or 300 times.”

One of the rare drawbacks of mentoring, however, is the fact that new attorneys can become sequestered in a

specific practice group, with a mentor from that same group as well. That means new lawyers end up having

less access to more diverse experiences and learning opportunities. In such cases, talent development

leaders say it’s important to work harder to ensure associates are able to round out their knowledge and

experience.

That’s why many learning officers inside firms have pushed for a twotrack approach to associate

development—establishing a mentorship where possible as well as a vigorous professional development

program centered on classroom training and workshops.

Professional development as practiced by the nation’s largest law firms can look more like an institution of

higher education than a subsection of the human resources or recruitment office. A number of large law firms

have opened “universities” that oversee their talent management programs. They are as varied as their

owners, but they all share a common goal: preparing their attorneys for the future.

A prominent example is Reed Smith University (RSU), which launched in 2004 as a partnership with The

Wharton School of the University of Pennsylvania. Comprised of five “schools,” RSU was the first of its kind to

offer hundreds of classes to support lawyers, clients, and staff. Its schools include Law, Leadership, Business

Development, Technology, and Professional Support, which serves support staff.

Meanwhile, the Kirkland Institute at Kirkland & Ellis LLP provides yearround training opportunities for its

associates, partners, and clients. New attorneys are encouraged to participate early at the firm, defending

depositions, drafting transaction documents or security filings, and arguing motions in court. The Kirkland

talent team provides the firm lawyers with the kind of training that could change their futures.

What distinguishes some of the larger firms is their requirement that associates, junior partners, and partners

participate in talent development programs. There is no free pass out of them. The firms make it clear that

learning is a priority for the organization, and it should be for the individual as well.

“By having mandatory programs, it tells people that in addition to the expectations on associates for work and

office commitments, training is important, too,” says Gregg LoCascio, P.C., a partner at Kirkland & Ellis. “It’s

not just something that is available, it’s required.”

For Arnold & Porter LLP, professional development became a natural extension of the firm’s pro bono work in

the District, providing a winwin for the firm and its attorneys. Its Criminal Practice Institute’s annual training

program is devoted to the issues of criminal procedure and criminal law in the Superior Court of the District of

Columbia. The sixsession program prepares associates and partners to work on everything from simple

assault cases to homicides. The inhouse training continues with monthly lunches and moot court for

whenever cases go to trial.



“I think our associates are coming out of law school fully capable of doing the work. The lawyers go through

the training, and if they are members of the D.C. Bar, they become eligible to work on cases with me

representing people in Superior Court,” says Mary C. Kennedy, counsel at the firm. “The orientation program

and class training is to get them acclimated to Superior Court. As they progress at the law firm, they are

exposed to client representation. . . through the pro bono commitment.”

More Responsibility, Less Experience

With law firm metrics changing so dramatically after the recession, firm leaders have become exceedingly

cost conscious, looking for efficiencies and employing associates in a more costeffective manner, filling gaps

and expecting more of new lawyers.

Most senior associates and junior partners today have much more difficult assignments than they did before

the recession. Many of them have enormous responsibilities and those duties come to them much sooner

than they did in the past. Some are supervising matters that would have been the purview of partners, often

running large teams, presiding over budgets, and managing client relationships.

“Twenty years ago, today’s senior associates would look like partners,” Reed Smith’s Maguire says. “That’s

why they need help developing skills around delegation, feedback, and assembling teams, as well as

interacting with clients and generating additional work from clients.”

Strikingly, though, the focus of most professional development programs in the past was not on best practices

in project management. Certainly, if a mentor had a great track record at project management, associates

could learn from him or her, but it wasn’t until recently that professional development staffers began looking at

ways to provide these basic skills.

No surprise, of course, that associates are eager to take on more responsibility and for a chance to develop

proficiency, if only to increase their value to the organization. After all, they have borne the majority of the

downsizing in the last seven years, and they face intense pressure to find and keep jobs at law firms. If the

law firm is less interested in meeting every need, it’s no wonder these lawyers have become, in effect, free

agents.

As free agents they understand that their knowledge and skills are portable, and that the only security they

have these days is their ability to manage those talents and take them from one firm to the next. In that sense,

they are more entrepreneurial and less willing than their more experienced peers to be compartmentalized

into practice niches with narrow futures.

“The challenge for young associates coming up to the partnership stages is they haven’t all had access to the

professional development that they need,” says Richards, the executive coach and lawyer. “Firms have been

in such survival mode that these kinds of best practices are seen as additional and desirable, but we need to

work on the fundamentals first.”

Recognizing the shifting dynamics, a number of larger firms have begun to arm associates with the tools they

need to succeed, even if they risk the associate or junior partner leaving for another law firm. Firm executives

say the risk is calculated, and worth it. More often than not, associates appreciate the effort and are more

willing to stay at organizations that invest in their employees.

“You look at the current people we recruit,” LoCascio says. “They don’t want to be a cog in a big machine.

We’re at a point where people are much more vocal about their expectations and what they want from a firm.

They want to know their voice and their contribution to the team is valued.”

It not only makes good business sense, it’s a good human resources move. Associates who have expressed

satisfaction with their work are more likely to stay, especially if they receive regular feedback on their work,

have access to ongoing training, and are given a mentor. In this sense, professional development becomes a

route to job security.

The financial vulnerability of law firms even calls into question the notion of “paying your dues” in order to

earn a place among the partners. No wonder many new attorneys want to speed up the learning process and

vetting phase of their “apprenticeship” to accept a promotion to partnership.

Resilient CLE

One of the many steps on that path to partnership has always been CLE programs. They have been the core

of professional development for attorneys at every level of the profession and in every position. CLE is



especially valuable for solo practitioners, inhouse counsel, and some government attorneys who have fewer

chances to participate in wellorchestrated learning programs. The distilled information found in CLE courses

on issues ranging from drafting contracts to medical malpractice to personal injury litigation is the essence of

knowledge transfer.

CLE also is a bridge between what new lawyers learned in law school and the realities of practicing in law

firms, government agencies, or corporations. CLE programs can put new lawyers on a firm footing that

prepares them for the next phase of their legal education, or they can be helpful for veteran lawyers making

career transitions, such as switching from a government post to a smaller firm. CLE also happens to be an

efficient way to stay up to date with case law.

Often lawyers are mandated to take a certain number of CLE courses annually by state bars. In the District of

Columbia, attorneys are not required to, although newly admitted lawyers must complete the Mandatory

Course on the D.C. Rules of Professional Conduct and District of Columbia Practice within 12 months of their

Bar admission.

CLE programs also serve as a vetting opportunity for different practice areas. If new attorneys are uncertain

about their career choices, they can delve deeper into the subject matter. They can also use the sessions to

build their network.

Postrecession, CLE has become a harder sell in some firms, although it remains especially popular with

government attorneys and inhouse counsel for acquiring knowledge in an organized and accessible fashion.

In midsize and large law firms, associates may ignore entreaties from professional development staffers to

attend workshops, staying hunkered down over their work. Even for inhouse and government attorneys,

attendance at CLE sessions can be difficult given the pressures to produce, but CLE remains one of the best

ways for lawyers to network among their peers.

Of late, the competition for professional development dollars has gotten fiercer. The traditional CLE approach

of delving deeply into a point of law or revealing new tools for attorneys has been supplanted, in part, by

practically focused sessions. The nuts and bolts of the law are more important than ever.

“I think it’s an indication of how things have shifted,” Mills says. “A lot of lawyers are looking for a more

entrepreneurial approach. There’s a recognition that the skills you need to be a great problemsolver for your

clients are not the skills you need to grow your firm.”

Beyond CLE

Most firms have recognized the urgency of responding to an evolving legal industry and the price sensitivity of

clients by adopting a more businessoriented mindset. That business culture has prompted new interest in

leadership and business development programs that serve both partners and associates.

Beyond mentoring, Feldesman Tucker has adopted some of the new professional development practices that

might be part of the portfolio of a larger operation. The firm invited a public relations person to meet with

associates to review their personal business plans. The idea is to build a meaningful biography for each

associate and create a social media face to promote services. “Everybody is involved in getting the word out,”

Dana says. “We have a firm image, not necessarily a focus on individual lawyers.”

While communications and marketing courses have been elevated to musthaves, many of the training

programs that operate away from CLE are focused on growing individual knowledge about the business

community, leading teams, and managing massive projects. Law firms still seek out leadership as one of

those qualifications in people, but aren’t always satisfied with the results of that leadership.

“This investment in professional development is an enormous commitment by the firm, but it’s part of the

culture,” LoCascio says. “It’s seen as a differentiator for the brand. It’s about everybody here working to keep

our clients happy, and what clients want are people who are partners in the work and who have the skills to

work effectively with them.”

Many firms are lagging behind their corporate counterparts when it comes to their business acumen.

Leadership courses emphasize building the governance and supervisory skills that will serve attorneys not

only in the courtroom but also in the boardroom. Additionally, talent development courses focus on creating

and managing teams, project management, and time management, “soft skills” that sit outside the law.



“I’ve started offering my time management seminars to law firms, and it’s been surprising how many lawyers

have welcomed the advice and tactics,” says Dan Simons, a professional development coach and coowner

of the Founding Farmers Restaurant Group. “They are swamped with work. They have very little time in their

days to cope, and they don’t have the tools they need to manage the deluge. I help them think through their

priorities and give them effective tactics to make sound choices.”

Where Apprenticeship Still Matters

For some attorneys in Washington, D.C., a long legal apprenticeship is not only helpful, it’s required. The

Office of the Legislative Counsel of the U.S. House of Representatives is home to a fairly unique brand of the

law and 46 welltrained attorneys who specialize in it: legislative drafting for members of Congress.

“Lawyers spend about one year in the tutorial program where you’re really not a contributor to the workload

during that time. It’s nothing like a law firm. It really is an apprenticeship,” says Warren Burke, the office’s

assistant counsel and a past president of the Federal Bar Association (FBA). “We want them to learn first.

“After you graduate from tutorial, you receive your subject areas. During the tutorial you have an attorney

supervising everything you’re doing. Once you graduate, you have your own clients. It can be a thrilling but

perhaps a scary moment for you,” he adds.

The work is eclectic enough that it’s nearly impossible for even an experienced attorney to hit the ground

running in the Counsel’s office. Few of the legion of lawyers who populate the Hill are trained in the intricacies

of legislative drafting and procedure. The Counsel’s office becomes a resource, and House staffers come to

the office with ideas for drafting and drafts for vetting. (A similar office exists in the U.S. Senate.)

Burke says Counsel attorneys can usually tell whether there’s an enforcement mechanism included or not,

and they are able to determine whether the new law would work with existing laws on the books.

“You go to law school and you’re taught cases,” Burke says. “You get the impression that the law starts with

judges and their opinions and not with the legislative branch and members of Congress. A lot of times that

gets lost in the shuffle at law school. Legislative lawyering is not really focused on in legal training in law

school.”

For congressional and government attorneys like Burke, general professional development is a hitormiss

proposition. Most of their talent development options come through the FBA and the Women’s Bar

Association. Both groups present a suite of CLE offerings. Additionally, Burke and his colleagues are able to

access subjectmatter training from the Congressional Research Service. These more esoteric courses focus

on topics such as public policy, foreign affairs, trade, and domestic social issues.

One program that has received a great deal of attention is the National Advocacy Center (NAC), which is

operated by the U.S. Department of Justice’s Executive Office for United States Attorneys. Located at the

University of South Carolina, more than 20,000 people in U.S. Attorneys offices are trained in advocacy skills

and management operations annually.

On Your Own

For sole practitioners and inhouse counsel, there’s a recognition that professional development may hold the

key to greater success, but the opportunities for learning will be homegrown and discrete. Tracking legal

developments, learning about new technologies, or figuring out how to best use social media applications all

constitute important elements of the practice for an ambitious attorney.

An inhouse attorney or solo practitioner with no major infrastructure to back up professional development

needs to be creative in looking for programming that serves his or her needs but also happens to be

affordable and timely.

“I’m a trialfocused litigator,” says Gray of GrayLegal. “Before a trial, I pick an aspect of it and then bill time to

myself for working on that. I’ve been focused on voir dire lately because I think I could learn more about that. I

spent a lot of time over a weekend or two reading everything I could get my hands on about best practices

and different techniques. Obviously there’s a benefit to my client, but it’s something that I’m doing for myself,

too.”

Small law firms and solo practitioners are the prime targets of CLE courses offered by local bar associations,

specialized online courses and workshops, and CLE retreats and conferences. In fact, legal conferences are

a valuable way to make connections and to find knowledgeable experts in a field that could be of later use. A



number of organizations offer specialized training programs to address specific practice areas. A fine example

is The National Institute for Trial Advocacy program, which provides comprehensive trial advocacy training for

attorneys.

The Internet also presents a new and relatively deep opportunity to cull information about the law practice and

legal issues. An illustration of this is Larry Kaye, a litigator and founder of Litigation Strategy and Training,

who posts brief articles on his LinkedIn page that attorneys can access and read. And the Environmental Law

Institute invites lawyers to participate in Webinars of their presentations on key environmental issues.

For individual attorneys, mentors can be found in a variety of ways. They can seek out someone at a

conference, a workshop, or a former firm where they worked, engaging them in a mentoring relationship that

could prove quite beneficial. Or they could reach out to a coach and pay a few for their services as both

mentor and educator.

“People coming to me for help want to be happier and more successful in their law firms or in their own

practice,” Richards says. “For them, they’re looking for a way to believe that things can be better. They’re

setting a goal. They’re engaging their strengths and values.”

A more unconventional way to access professional development for solo attorneys can be through altruism, of

sorts. By volunteering for an organization or serving on a bar committee, many attorneys build up expert

networks, develop mentoring relationships, and learn handy tips and tricks about the legal profession.

A Competitive Advantage

If law school is a strong footing for the law, then professional development—whether selfinitiated or

mandated by the boss—becomes the building blocks for a long and varied career. It provides opportunities

and networks, mentors, and coaches, and it opens up new areas of the law for pleasure and for work. But its

value is also more tactical and specific. It creates a competitive advantage for the learner, as well as for the

agency, company, or firm.

For that reason, the legal profession needs comprehensive talent development now more than ever, experts

say. “A lot of what I hear about business development is really code words for marketing,” Mills says. “We told

ourselves we’re above marketing. We don’t have to do it because we bought into the notion that as long as

we’re brilliant problem solvers, the business will come to us. We’ve come to grips with the fact that that

doesn’t necessarily work. The phone just doesn’t ring. We have to do something for ourselves to make it

happen.”

As the profession has morphed, midsize and large law firms are having to settle in with the discouraging

thought that the golden years of nearlimitless budgets may be gone for good. What’s left is a more sobering

and scrappy environment, one that reflects the tough decisions made over the last seven years and the

consequences of those choices.

And individual lawyers, on their own or inside organizations, have discovered that professional development

is no panacea, but it is the best way forward to preserve the profession and to greet this new era with the

agility and presence it demands.

“I think today is more challenging than before the recession,” Maguire says. “Even though the recession has

passed, everything has changed. It’s not going to change back. There’s a whole lot more that is going to be

required of individual lawyers, practice groups, and firms. We need to be prepared for that reality.”

Sarah Kellogg wrote about legal policy challenges in fighting infectious diseases in the April issue ofWashington Lawyer.

11/15/2017 Building a Niche Practice: Go Small to Go Big | Solo, Small Firm and General Practice Division

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Building a Niche Practice: Go Small to Go BigVol. 30 No. 2By Jeramie Fortenberry

Jeramie Fortenberry ([email protected]) is anattorney with a niche practice that provides virtual representationfor uncontested probate matters. He also publishes The ProbateLawyer (www.fortenberrylaw.com), a blog focusing on probate andestate planning.

It’s no secret that the legalmarketplace is in turmoil. Thecombination of tightfistedconsumers, an oversupply oflawyers, and increasedcompetition from nonlawyers hascreated the perfect storm in thelegal market. In this competitiveenvironment, lawyers mustdistinguish themselves from thecompetition in order to claim abigger piece of the pie. One wayto do this: Build a niche law practice.

What Is a Niche Law Practice?

Put simply, a niche practice is a focused practice. Nichepractitioners don’t try to be all things to all people. Instead, theyfocus their time, energy, and marketing efforts on a discretesegment of the legal market.

There are several ways to carve a niche out of the broader market.Some niche practices focus on practice areas, such as bankruptcyor personal injury law. Others focus on demographics, such as age,gender, occupation, income level, ethnic background, or maritalstatus. Still others combine both practice area and demographicconsiderations—say, immigration law for athletes or estate

GPSolo magazine is publishedsix times a year

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planning for highnetworth individuals. But in each case, thepractice is focused on a distinct market segment.

Different attorneys have different approaches to specialization.There’s the generalist who takes everything that comes throughthe door (defend a dogbite case on Monday, prepare a will onTuesday), the ultraspecialist who does one thing only, and a rangeof practices that fall in between. How do you decide whether aniche practice is right for you?

Benefits of a Niche Practice

I believe that niche practices are a smart choice for mostattorneys. Although there are a few potential downsides (discussedbelow), they are far outweighed by the benefits. Here are a fewreasons why you should consider a niche practice.

A niche practice allows you to focus on the work you findmost enjoyable. Law licenses are necessarily general. As amember of your state bar, there is a broad range of legal work thatyou could do and people whom you could serve. But not allpractice areas are equally fulfilling, and not all people are idealclients. Generalists can find themselves stuck doing work theydon’t enjoy for people they don’t like.

A niche practice allows you to do the work you enjoy for the clientsyou like. You are in control. Decide on the work you like and/or theclients you want to serve, then develop a practice that fits the bill.As your practice grows, you can weed out the work that you don’tenjoy and build a more rewarding practice.

A niche practice can be more profitable than a generalpractice. There are two ways to make more money in yourpractice: Raise your profit per client or increase your new clientvolume. Being the goto person in your niche can help you doboth.

Niche practice can help raise your profit per client bydemonstrating expertise. Many clients will pay a premium for aspecialized skill set. If you are a recognized expert in your niche,you are more likely to land these highpaying clients.

Sometimes more profit per client is not an option. In some practiceareas, for example, the demand may be elastic or fees may becapped. In these situations, you will need to ramp up your clientvolume before you can make more money. You have a betterchance of getting more clients if you are known for specializedexpertise.

Profitability is often a function of efficiency. If fees are fixed, theattorney who can do the same work with the least time oroverhead will have the highest profit. Attorneys who work within aniche usually become very efficient at what they do. Generalpractitioners, by contrast, are likely to spend more time on a

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matter than a specialist would. This can result in eitherovercharging the client or writing off time. These inefficiencies areavoided in a niche practice.

Attorneys with niche practices are also better able to weed out badleads and focus on clients that will be more profitable. Becausethey know their niche, they know what matters are and are not agood fit for their firm. The ability to spot bad clients or casesbefore agreeing to representation can prevent much hassle andwasted time.

A niche practice is an easier sell than a general practice.Being able to clearly and succinctly summarize your firm’s valueproposition is the key to effective marketing. It differentiates youfrom your competition and gives your ideal client a reason tochoose your services.

The more general your practice, the harder it is to develop a valueproposition that will set you apart from your competition. Youbecome one of many attorneys who handle all kinds of matters forall kinds of people. The potential client has no incentive to chooseyou over anyone else.

A niche practice helps you speak to the specific clients that will getthe most benefit from your specific services. When your coremarketing message appeals to a potential client’s decisionmakingdrivers, you stand a better chance of landing that client.

Downsides of Building a Niche Practice

So why would anyone decide not to build a niche practice? Let’stake a look at a few of the most common arguments against nichepractices.

A niche practice can be more volatile than a generalpractice. Niche practices are less insulated from market risk thangeneral practices. A change in law or market conditions can swingthe supplydemand pendulum in the wrong direction. Nichepractices can deteriorate quickly when the market changes, suchas when the Bankruptcy Abuse Prevention and ConsumerProtection Act of 2005 decreased shortterm demand forbankruptcy attorneys.

By contrast, general practices are less prone to market risk. Ifdemand drops in a particular market, the remaining practice areaswill keep the ship above water while riding out the storm. Ofcourse, less volatility has its own downside. General practices areless volatile precisely because they are less focused, and anunfocused practice can be a hard sell.

A niche practice can be less interesting than a generalpractice. Some attorneys thrive on the diversity that comes froma general practice. To effectively serve a broad range of clients,the attorney must keep learning. Each week is a new adventure.

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This intellectual stimulation keeps life interesting for generalpractitioners.

Whether this is a good thing depends on your perspective. Somewould argue that a general practice sacrifices depth for breadth,requires too steep of a learning curve, and carries moremalpractice risk. There’s no question that it is harder for thegeneral practitioner to develop deep expertise in a specific niche.

A niche practice may not be economically feasible in yourgeographic area. Some attorneys are simply not in a market thatwill support a narrow niche. If you want to develop a niche practicebut find that the local market won’t support it, you have only twochoices: You can accept the fact that you will need to have at leasta somewhat general practice, or you can cast a wider geographicnet to help support your niche practice. With the communicationtechnology now available, the latter choice—casting a broadergeographic net—is more feasible than ever.

And a niche practice need not exclude you from working outsideyour niche in your geographic market. In fact, some attorneys findthat focusing on a narrow niche brings them additional work inother practice areas. Attorney Kristen Marks started My PinkLawyer to focus on the estate planning needs of women aged 30 to55. She found that the more she “niched down” on her targetmarket, the more her overall business level increased. “I amspeaking directly to those people within my target market,” saysMarks. “They are more likely to reach out to me because they feelI am speaking directly to them and their needs. Ironically, it alsohasn’t turned off the single guys from reaching out to me for theirestate planning needs. Go figure!”

How to Choose Your Niche

Choosing a niche is about matching your interests and expertisewith a segment of the market. Before you launch your nichepractice, you will need to think strategically about (a) whether theniche is the right fit for your personal qualifications and interestsand (b) whether the niche is economically viable in your specificgeographic market. This analysis will require both selfevaluationand market research. Here’s a fourstep process to get youstarted.

Step one: Identify your professional strengths andweaknesses. To competently and efficiently meet the needs ofclients in your niche, you need specialized expertise. It makessense, then, to choose a niche that matches your strengths.

Attorney Susan Cartier Liebel, founder and CEO of Solo PracticeUniversity (solopracticeuniversity.com), believes that priorexperience is more important for some niches than others. “If yourniche is a specific type of personal injury like Vibrio vulnificus foodpoisoning cases, then you need significant experience in personalinjury law and an established practice before you can practice this



exclusively,” says Cartier Liebel. “However, if your niche is divorcelaw for Hispanic members of the armed forces stationed in Virginia,then it is a demographic niche and success is determined bytargeted marketing. This type of niche can be started as soon asone is comfortable with the basics of dissolutions in Virginia.”

Although you can always acquire expertise if you don’t alreadyhave it, you should think about choosing an area in which you haveat least some experience. This is important not only to effectivelyserve your clients, but also to be sure that you enjoy working inthe niche before taking the leap.

You should also take a hard look at your weaknesses. If you planto start a practice focusing on the needs of Cuban immigrant–owned businesses in Miami but can’t speak Spanish, you mightwant to reevaluate your practice area. If you hate working in highemotion contexts, a divorce practice might not be for you. Anhonest evaluation of your weaknesses can save you from choosinga niche that isn’t a good fit.

Step two: Identify any personal factors that help you speakto your niche. When it comes to choosing a niche, life experiencecan be as important as professional expertise. Some attorneysbuild niche practices around meeting the needs of people withsimilar experience, life stage, hobbies, interests, sexualorientation, or religion. At a personal level, a niche practice basedon shared interests or values can be intrinsically enjoyable.

Marks started My Pink Lawyer after a sixyear hiatus to focus onmentoring and coaching women. Given the life experience that sheshares with her target market, her choice of niche was onlynatural. “It’s been my experience that women in particular oftenfeel intimidated by the legal process and attorneys,” says Marks.“As a woman and mother myself, I can relate to other women andmoms and the estate planning and guardianship concerns theyhave for their families.”

Step three: Identify your ideal clients. To market a nichepractice, you need to be able to speak to your target audience. Andto do that, you need to be able to clearly identify that audience.

Marks’s marketing efforts are closely tied to her niche focus. “Onceyou understand who your target market is for your clients, it’s veryeasy to discern where to devote your marketing efforts,” saysMarks. “Since my target market is women between the averageages of 30 and 55, I reach out to them on social media andwomen’s magazines and forums. I don’t spend a dime on any paidmarketing that is not going to primarily reach my target market.”

Past experience is a great way to identify your ideal clients. Whatclients have you enjoyed working with the most? Which have beenthe most profitable? Once you have identified your best clients,look for common characteristics. What makes them tick? Whatinterests, hobbies, and passions do they share? What challenges



do they face? What needs do they have? Why did they choose youover your competition? Chances are that others with the samecharacteristics could benefit from your services.

Step four: Conduct market research for all potential nichepractices you have identified. Once you’ve compiled a list ofpotential niche practices, it’s time to begin market research. Isthere enough demand in your geographic market to support yourniche practice? How much competition will you be facing? Whatcompetitive advantages distinguish you from your competition?The answer to these questions will help you evaluate whether yourniche practice is likely to succeed.

Start by defining your geographic market. Where can youreasonably expect to find and serve your clients? If you practice inan area that requires frequent court appearances, for example,your geographic market may be limited to an easy driving distancefrom your office. On the other hand, if you practice in an area thattranscends state borders and doesn’t require court appearances,your practice area might include the entire nation.

Once you have honed in on your geographic practice area, youneed to determine whether there is sufficient demand in thatmarket. If you have already practiced in that market, you may beable to draw from your own experience. Otherwise, you will needto look at what others are doing. For example, you might:

Read the Yellow Pages or search online for competitors that are offering similar services to yourtarget market. If they can do it, you can do it, too.Use a keyword tool like the free Google AdWords (adwords.google.com) to find out how manypeople are searching for the services you provide in your geographic area. A healthy search volumeusually indicates solid demand.Read magazines or blogs that are targeted to your ideal clients in your geographic area. If peopleare paying for advertising in those publications, chances are that they are seeing at least someresults.

If you determine that there is a demand for your services in yourgeographic market, take a closer look at the competition. Ideally,you will find a moderate level of competition—enough to reaffirmthe need for your services, but not an oversupply of lawyers. If yousee no sign of competition, it could mean that there is low demandor that you are the first to discover that niche in your market.

Small Choices, Big Rewards

Once you’ve identified a few potential niches and analyzed them inlight of your market, there’s a good chance that you will find that aniche practice is within reach. Building that practice will place youahead of the curve and give you a more profitable and rewardingpractice.

HOW TO BUILD A NICHE PRACTICE

Drew Amoroso Counsel, McGuireWoods LLP

[email protected]

LET’S GET STARTED

WHAT WE’RE GOING TO COVER

Identify a Niche

Create a Brand

Become an Expert

Build a Network

4 KEYS TO BUILDING A NICHE

STEP 1: IDENTIFY A NICHE

If everybody is going one way, there’s a good chance you can find your niche by going exactly in the opposite direction.

— Sam Walton

ONE: IDENTIFY A NICHE


WHAT IS A NICHE PRACTICE?

A niche practice provides a specific service, to a specific market, using a specific message.


WHY A NICHE PRACTICE? Focus on an industry you appreciate and enjoy

Raise the visibility of your practice and attract attention to your work

Capitalize on the opportunity to generate business

Become an expert

Streamline your practice


WHERE TO LOOK FOR YOUR NICHE Examine your personal life or areas of interest

Consider the type of clients and subject matter you enjoy the most

Emerging markets

Underserved industries

(Note: A niche practice can also provide a specific service that cuts across industries)


WHERE TO LOOK FOR YOUR NICHE EXAMPLES

Bed Bug Law

Drone Law

Pub Law / Craft Beer Law

Food Truck Law

Adventure Racing / Extreme Sport Law

Golf Course Law*


WHERE TO LOOK FOR YOUR NICHE

Remember: Your niche doesn’t need to be your entire practice.


YOUR IDEAL CLIENT AND TARGET AUDIENCE Clearly identify your ideal client and target audience.

Create a picture in your mind of the following:

Who they are and what they look like

Where they live / where their business lives

The problems they face

How / whether they currently solve those problems

Expectations of / familiarity with attorneys

Where and how they get their information


YOUR IDEAL CLIENT AND TARGET AUDIENCE Example

My ideal client is a fitness entrepreneur between the ages of 25-35, with a California company that is between 0-3 years old. Their business has 1-10 employees and grosses between $500,000 to $1 million per year. The company provides a service or product related to the fitness industry, and they’re very passionate about the work they do. They likely have not used the services of an attorney before, or don’t understand the kind of value an attorney can add to their business.

Their biggest issues are related to brand protection, commercial agreement review, employment issues, and day-to-day advice and counsel. They have a large online presence, are active on social media, and primarily sell their products online.


MARKET RESEARCH

What is the demand?

Who is the competition?

Is there a gap in the industry?

What will it take to reach your clients?

Business plan, budget, marketing plan


A QUICK NOTE FOR JUNIOR ATTORNEYS

Now more than ever, junior attorneys have an opportunity to get clients and generate business because of:

Technology / social media’s ability to reach niche markets

Rise of the young executive

STEP 2: CREATE A BRAND

All of us need to understand the importance of branding. We are CEOs of our own companies: Me Inc. To be in business today, our most important job is to be head marketer for the brand called You.

— Tom Peters

TWO: CREATE A BRAND TWO: CREATE A BRAND

BASICS When creating a brand within a niche, the goals are:

To niche down far enough that you capture the attention of your audience and potential clients

To communicate that you understand your clients specific problems better than anyone, and know how to solve them

To be memorable and remain top of mind

TWO: CREATE A BRAND

THREE TIPS FOR CREATING A BRAND NUMBER 1: CREATE A PERSONAL BRAND STATEMENT

A statement that encapsulates who you are and what you do.

Something that will have an impact on your audience and that will keep you top of mind.

TWO: CREATE A BRAND

THREE TIPS FOR CREATING A BRAND I practice small business law

I practice fitness law

I do consumer rights litigation

I make dishonest car dealers pay

I’m a divorce attorney

I help moms and their children get back on their feet after a tough divorce

I’m an intellectual property attorney

I help minority-owned tech companies protect their products and brand

TWO: CREATE A BRAND

THREE TIPS FOR CREATING A BRAND NUMBER 2: CREATE A NARRATIVE

Craft your story. Why are you connected to this work?

Create a personal connection with the listener.

Remember the impact your words and attitude can have on people.

TWO: CREATE A BRAND

THREE TIPS FOR CREATING A BRAND NUMBER 3: CREATE A PERSONA

Utilize marketing tools to effectively create your virtual brand persona

Social media, website, word of mouth, storytelling

Potential clients should be able to easily discern what it is that you do

TWO: CREATE A BRAND

ADDRESSING CONCERNS

Won’t I limit myself by niching down?

Won’t I turn be turning away potential business?

What about the other parts of my practice?

STEP 3: BECOME AN EXPERT

THREE: BECOME AN EXPERT

KEYS TO BECOMING AN EXPERT Understand the Industry

Communicate that you understand how their business works, what their problems are, industry norms

Understand Their Legal Issues and the Law

What are the specific, common legal issues that they face? (BUT remember your audience.)

Position Yourself as the Expert

Use your personal brand, narrative, persona and other marketing tools: articles, blog posts, interviews, website, social media

STEP 4: BUILD A NETWORK

If your business comes from relationships, relationships should be your business.

— Doug Ales

FOUR: BUILD A NETWORK FOUR: BUILD A NETWORK

KEYS TO BUILDING A NETWORK Invest in relationships, not future business.

Network with intention IN your industry

Go where your clients go; meet them on their home turf

Industry events, industry groups

Network with intention AROUND your industry

Align yourself with others who can recommend your services—AND whose services YOU can recommend.

Look for opportunities to RECOMMEND OTHERS and CROSS-SELL

Litigation<———>Transactional

Ancillary service providers

FOUR: BUILD A NETWORK

KEYS TO BUILDING A NETWORK Create an ecosystem where you are constantly adding value to clients, potential clients,

referral sources, and other non-clients

Think insurance, accountants, investors, suppliers, co-packers, distributors, web-designers, developers, marketing and brand specialists, restaurant owners

Be a connector

Simple Ways to Start Building Your Network:

Host an event

Host a panel

Attend industry events

Align yourself with someone who has a similar practice

Offer to connect people and then follow through

BIG PICTURE TIPS

BIG PICTURE TIPS

SOME ADDITIONAL FACTORS TO SUCCESS Be consistent / utilize your calendar and time-blocking

techniques

Maintain a client / referral dossier

Be persistent, and demonstrate effort and enthusiasm

Utilize the resources of a big firm

BIG PICTURE TIPS

Recommended Reading List

How to Win Friends and Influence People (Carnegie)

The 22 Immutable Laws of Marketing (Ries)

The Startup Of You (Hoffman)

Getting Things Done (Allen)

The Compound Effect (Hardy)

How to Make People Like You in 90 Seconds or Less (Boothman)

How to Talk to Anyone (Lowndes)

Endless Referrals (Burg)

The One Thing (Keller)

Deep Work (Newport)

The Credibility Code (Hale Alter)

The Four-Hour Work Week (Ferris)

The 7 Habits of Highly Effective People (Covey)

Show Your Work (Kleon)

HOW TO BUILD A NICHE PRACTICE

Drew Amoroso Counsel, McGuireWoods LLP

[email protected]

3

1

inTroduCTion: The inside Counsel revoluTion

a. TransformaTionThe core mission of the global corporation is the fusion of high per-formance with high integrity and sound risk management. The ideal of the modern general counsel is a lawyer-statesman who is an out-standing technical expert, a wise counselor, and an accountable leader and who plays a major role in assisting the corporation achieve that fundamental goal of global capitalism. For the lawyer-statesman, the first question is: “Is it legal?” But the ultimate question is: “Is it right?”

This book is about how the inside counsel revolution—which began in the late 1970s and has increased in scope and power ever since—is inextricably bound to the performance with integrity mission of the corporation. It sets out my deeply held prescriptive views about what it means for the General Counsel (GC) to be a lawyer-statesman, assess-ing all corporate action through the screens of performance, integrity, and risk. It focuses on enduring first principles the General Counsel should follow—now and in the future—in quest of what is “right.” It describes how the General Counsel, working with the chief executive officer (CEO) and other senior executives, must forge an unbreakable

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4 InsIde counsel revolut Ion

bond among performance, integrity, and risk on a set of foundational corporate issues: business strategy, culture, compliance, ethics, risk, governance, citizenship, and organization. In so doing, the General Counsel must help create the trust in the enterprise that is so vital to its sustainability and durability: trust among employees, share-holders, creditors, customers, partners, suppliers, regulators, media, nongovernmental organizations (NGOs), and the public. To help the corporation achieve its high performance, high integrity, and sound risk management mission, the General Counsel must resolve the most basic problem confronting inside lawyers: being partner to the board of directors, the CEO, and business leaders but ultimately being guardian of the corporation.

This prescriptive vision is attainable because General Counsel and inside law departments in top global corporations have become far more sophisticated, capable, and influential, transforming both busi-ness and law in two important descriptive ways I will also explore in this book.

First, the role of the General Counsel inside the corporation has sig-nificantly grown in importance.

• The General Counsel has now often replaced the senior partner in the outside law firm as a primary counselor for the CEO and the board of directors with very broad scope beyond law that includes ethics; reputation; governance; communications; public policy; enterprise risk; crisis management; and, ultimately, cor-porate citizenship.

• The General Counsel is now often a core member of the top man-agement team and participates in discussion and debate—not just about defense, but also about offense; not just about law, but also about business; not just about risks, but also about opportunities; not just about public policy, but also about geopolitics.

• The General Counsel now often has a broad organizational and leadership role beyond the legal department—in such areas as tax, trade, environment, security, real estate, customer care, com-munity relations, and public affairs. The GC can have operating responsibilities over diverse units that require broad managerial

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Introduct Ion: the InsIde counsel revolut Ion 5

skills and that, in many instances, make him the final decision maker in a corporation.

• The General Counsel is now often seen as having importance and stature comparable to the Chief Financial Officer (CFO) by direc-tors, CEOs, and business leaders because the health of the cor-poration requires that it navigate complex and fast-changing law, regulation, litigation, public policy, politics, media, and interest group pressures across the globe.

• All these developments have now often combined to increase dra-matically the expertise, quality, breadth, and compensation of the General Counsel and inside counsel, with a company’s lawyers now being hired from the highest reaches of government, from leading law firms, and from a growing pool of highly talented inside counsel.

Second, the role of General Counsel outside the corporation has also significantly grown in importance with a related, dramatic shift in power from outside law firms to inside law departments over both matters and money.

• The General Counsel and inside lawyers, rather than just throw-ing issues over the transom to law firms, have taken on day-to-day management and strategic direction of major matters affecting the corporation—ranging from cross-border trans-actions to multi-front litigation to international enforcement investigations to consequential public policy debates to building a culture of integrity. This is so because corporate legal depart-ments are increasingly staffed by outstanding specialists in all areas covered by private firms, including antitrust, litigation, tax, trade, mergers and acquisitions, labor and employment, intel-lectual property, and environmental law. Moreover, outstanding lawyers are now General Counsel of major divisions within com-panies, not just General Counsel of the whole company. These generalist and specialist inside lawyers—with skills and knowl-edge at least equal to their peers in law firms—lead mixed inside/ outside teams in managing hard problems facing the corporation.

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The days of information “asymmetry” when outside lawyers knew much more than inside lawyers are, for the most part, long gone in major corporations because sophisticated inside counsel today invariably know more about the corporation’s business and know as much or more relevant law.

• The General Counsel and inside lawyers have also strongly sought to reassert control over money—over the corporation’s expenditures on outside law firms. Inside lawyers have broken up monopolies or oligopolies that particular private firms had previ-ously enjoyed with particular corporations. They have forced law firms to compete for business. They have focused on cost control through a variety of techniques, from front-end budgeting and negotiated fees to back-end audits and cost disallowance, from preferred provider relationships to “strategic partnerships.” They brought important work inside the corporation by increasing inside legal staff, thus reducing the fees paid to outside law firms as a percentage of the corporation’s total legal spend. Increas-ingly, they are using new technology and specialist vendors (e-discovery, specialized research, form drafting, contract law-yers) to reduce further the scope of traditional private law firms. As many leading General Counsel are alums of major law firms, they can directly address the many techniques outside lawyers may improperly employ to pump up billing and revenues.

• Finally, General Counsel and inside lawyers are increasingly advocates, points of contact, or negotiators with important pub-lic and private parties outside the corporation in both developed and developing economies. Because governments affect markets in all nations—along a spectrum from the state capitalism of former Communist states to the variety of “mixed economies” in traditional “liberal” democracies—the “business in society” issues in these diverse global economies pose serious risk and significant opportunity. Boards and business leaders now del-egate major responsibility to the General Counsel to help the cor-poration reach its commercial and citizenship objectives across a minefield of policy, law, regulation, and public scrutiny. The General Counsel and inside lawyers increasingly have direct

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relationships with key actors in both the public and private sec-tors on matters ranging from major legislation to major deals.

In short, General Counsel have risen in power and status within the profession in the past 30+ years, becoming core members of top corpo-rate management and dramatically changing the relationship between inside and outside lawyers. Said The Economist in 2012: “the power of in-house lawyers has grown hugely in the past 10 years. The chief legal officer (CLO) is now one of the mightiest figures in the C-Suite.” A close observer of the legal profession recently stated: “The future and fortunes of most of the major business practice firms and their lawyers are now in the hands of corporate counsel . . . The status gap between inside and outside lawyers has largely been reversed.” A preeminent scholar of the legal profession has noted the continuous growth of “the power and prestige of in-house lawyers,” observing that: “In-house legal departments in the United States now also rival large law firms as a destination of choice for talented lawyers” and concluding that “[a] ll of this has profoundly restructured traditional mobility patterns and prestige hierarchies within the U.S. legal profession.” And the authors of a book on the evolution of General Counsel have noted: “The story of the General Counsel role over the past fifty years has been one of increasing prominence, power and prestige.”1

In light of this transformation, this book advances practical ideals about the mission of the global corporation and about the role of the General Counsel in helping to carry out that mission. It explores ideas that are potentially in tension: the pressures for high performance and the imperatives of high integrity, the GC both as lawyer-statesman and as subordinate to the CEO, the GC as partner to business leaders and as guardian of the corporation, and the importance of risk-taking and the necessity of risk management. In the analysis of key issues— com-pliance, ethics, risk, governance, citizenship, and organization—I hope to show that these potentially paradoxical ideas can co-exist and, indeed, can be complementary. The tensions—between performance and integrity, between the GC as leader and as subordinate, between partner and guardian, between risk-taking and risk management—can be resolved with the right approach and, ultimately, with the right

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culture. I also deeply believe that the framework and ideas advanced here apply to small and medium-size companies, although the scope and degree of implementation may be less robust due to fewer resources.

b. CrediT Where CrediT is dueThe book is, of course, based in important part on my 18 years at GE when I served under CEOs Jack Welch (Senior Vice President– General Counsel, 1987–2001) and Jeff Immelt (General Counsel until 2003; then Senior Vice President–Law and Public Affairs until my retirement in December 2005). As I traveled around the world, I gleaned ideas and practices from numerous exchanges with lawyers and business lead-ers in other global corporations. The book is also based on the many articles I wrote in the decade after retirement; on my presentations and discussions with lawyers and businesspeople at public and private conferences; and on my exchanges with students when teaching at law, business, and public policy schools, especially in a course co-taught at both Harvard and Yale Law Schools on “Lawyer as Leader: Challenges of the General Counsel.”

But, although I am seen as one of the godfathers of the inside coun-sel movement, I want to be absolutely clear that the movement, in the modern era, began before I went to GE in September 1987. The ini-tial inside lawyer counter-reaction to the dominance of large private law firms after World War II began in the late 1970s. It is symbolized by the founding of the American Corporate Counsel Association in 1982 (renamed the less U.S.-centric Association of Corporate Coun-sel in 2003). It is also reflected in a number of important articles and comments that reflected on the rumblings of revolution in the 1980s.2 Importantly, in the nearly 30 years since my tenure at GE began, there has been an explosion of highly talented General Counsel and other highly talented inside lawyers at top American corporations—and increasingly at leading non-U.S. companies. This infusion of high-quality lawyers inside major companies has accelerated the changes in role, function, status, influence, and power of the lawyers corporations employ. So, I want to stress the obvious at the outset: I was just one of many creating the inside counsel revolution. And I want to salute my

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predecessors, my peers, and the succeeding waves of talented General Counsel across the globe for their salient importance and influence in shaping the fundamental shift in the inside counsel role.

But, the GE law department was important. That importance stemmed, directly and clearly, from other lawyers who came to GE Legal, not from me. It was due to them, not to me, that GE became one of the symbols of the inside counsel revolution. In the past, some cor-porations, seeking to enhance the legal function, had sought General Counsel from the outside—individuals who, like me, had experience in government and in private practice. One of the first and most notable in the modern era was Nick Katzenbach, who was hired by IBM after capping his Kennedy-Johnson years as U.S. Attorney General. What distinguished GE was not going outside for its General Counsel, but going outside for many of the GC’s colleagues. In my first few years at GE, I replaced 30 of 33 direct or strong dotted line reports with leaders of the profession, drawn from government and private practice. They were equivalent in talent and experience to the top partners in private firms. My goal was straightforward: hire the best. These remarkable people filled key corporate specialty positions (e.g., head of tax, head of litigation, head of mergers and acquisitions, head of environmental health and safety). They also filled key General Counsel positions at our global business divisions (aircraft engines, power systems, medical systems, financial services), which were each the size of a Fortune 50 or Fortune 100 business. Given the broad, almost Herculean, responsibili-ties of the General Counsel I outline here, I could hardly discharge them alone but was highly dependent on outstanding colleagues who had an incalculable role in realizing the promise of the inside counsel revolu-tion. The influx of such extraordinary legal talent into a corporation sounded a thunderclap across the profession and caused many lawyers in firms and in government to consider a position that had not been on their radar screen before: inside counsel.

The GE experience was thus not about the General Counsel, but about the many extraordinary lawyers who transformed GE Legal—not about an individual, but about the “inside partnership.” Together, this multi-faceted and multi-talented GE team of lawyers experimented and innovated—helped shape the path of the inside counsel revolution.

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Any influence I had was multiplied a hundred fold by the creativity, imagination, and excellence of my colleagues.3 The GE experiment was totally dependent, as well, on the willingness of CEO Jack Welch and his successor, Jeff Immelt, to redefine the role of inside counsel, to hire from the outside, to drive the highest-quality lawyers across the top of the company—both at headquarters and in the operating divisions—and to pay market prices to acquire the best talent. Without the strong support—indeed, strong endorsement—of the CEOs for whom I worked, it would never have been possible to build an outstanding internal legal team that was an important exemplar of the inside counsel movement.

C. Causes: a sChemaTiC VieWThe inside counsel movement in the United States grew due to a series of interrelated and iterative causes, some of which have echoed across Europe and Asia (see pp. 450–454). First, as many have noted, the power and responsibility started to shift from large corporate law firms back to inside lawyers during the early 1980s. This was due, impor-tantly, to outside firms’ economic arrogance: charging ever-higher fees purportedly based on the number of hours worked and invoiced with a single line stating “for services rendered.” The post–World War II era of economic globalization was beginning to take off, posing increas-ingly complex commercial problems in multiple jurisdictions. So, too, there was a litigation explosion in the United States. Increased global regulation as well as activism by nongovernmental organizations raised a host of ethical, legal, and policy questions for corporations. These forces increased the demand for inside lawyers who could work closely with business leaders in addressing that transnational complex-ity. More deals and more disputes required more attention of more business leaders, who began to discover that “making” expertise inside the organization, rather than “buying” legal services outside, could increase speed, quality, and productivity—and “all deliberate speed” of inside lawyers in a competitive business environment was seen as just as important as quality and productivity.

Second, as inside lawyers began to assert their power, the position of General Counsel, which had once seemed a backwater for lawyers

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who failed to make partner at major law firms, began, in the 1980s and 1990s, to attract many more premier lawyers from outside the com-pany. Highly talented lawyers began to realize that the jobs as senior lawyers in a corporation had a number of advantages. General Counsel, and inside lawyers, are enmeshed in the fabric of the institution and positioned at the center of the action. They become clients and never have to worry about time sheets or billing, and, indeed, can control the substantive and economic relationship with outside counsel. Their work is diverse, covering a huge array of markets and products and geographies and extending far beyond the law. Inside counsel are part of an innovative inside legal partnership, which can be an authentic sharing and learning organization across businesses, specialties, and geographies. They can develop much closer relationships with business leaders, other staff, and operational peers than outside lawyers and can advise and execute on business as well as legal matters. They have sub-stantial responsibility as leaders—and would be judged on results and not micromanaged. As leaders, they could prevent problems, rather than coming in as outside counsel to clean them up. Their career paths are enhanced because they could progress to higher legal jobs in the company, become lead lawyers in another company, or cross over to the business side and become business leaders. Finally, if they were willing to bet on themselves and on the company, their compensa-tion—annual salary, annual bonus, deferred cash, deferred equity, and other company benefits—could equal the top of the law firm market or exceed it (often by significant amounts). The news across the pro-fession about the value of inside counsel jobs and the hiring of out-standing lawyers as General Counsel made it possible to broaden the in-house talent upgrade and to hire outstanding lawyers from across the profession for many senior inside counsel positions, not just for the position of GC.

Third, as the inside counsel movement gained momentum in the 1980s and 1990s due to increased responsibility and new talent, more and more business leaders and boards of directors began to reassess the value that broad, creative inside lawyers could add to their com-pany. This value stemmed, in essence, from lawyers being integrated into corporations and being able to act with knowledge and speed as

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partners in addressing commercial opportunities and risks and as guardians in protecting and enhancing the company’s integrity. The result was that, as some business leaders supported new law depart-ment models, other corporations began to take note. They, too, started to hire the new breed of General Counsel who were outstanding prac-titioners and leaders. They, too, started to redefine the role of inside lawyers, both in the company and in controlling and coordinating out-side law firms. Leaders of the legal profession became General Coun-sel, including former U.S. Attorneys General and Deputy Attorneys General, former Court of Appeals and District Court judges, former White House Counsels, former heads of regulatory agencies or elite units within those agencies, or the top partners in leading law firms. The status of inside counsel increased as a growing number of major corporations made such hires. In GE, after business leaders worked with the new breed of outstanding specialists and generalists, many realized that a step function increase in quality added markedly to their business teams. These operational leaders then supported the promotion of lead lawyers to the small universe of GE officers in a huge global company (inside counsel became 5 percent or more of the only 200 company vice presidents in an entity with more than 300,000 employees around the world).

Fourth, all the broad trends that had started the inside counsel movement in the late 1970s and early 1980s accelerated in the last decade of the 20th century and the first decade of the 21st. Faced with new global competition, corporations embarked on a never-ending pursuit of cost reductions and productivity increases. This included marked efforts to reduce outside legal fees and the overall legal spend by relying more on inside resources or non-law firm outside vendors. The day-to-day complexity of new technologies, new products, new global markets, and new competitors made ever-more important the day-to-day involvement of inside lawyers on business teams to achieve performance goals. The concept of simply manufacturing in the United States and exporting overseas became vastly more complicated, sophisticated, and nuanced. Global corporations often evolved into large, complex matrix organizations, with corporate functions from manufacturing to sales to marketing to finance under the control of

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distinct units in many nations. Such differentiation created the need not just for cross-functional integration, but also for uniform global standards on a host of issues from quality to compliance to security to ethics to values. Similarly, beyond dramatically changing business challenges, a host of trends increased companies’ legal, ethical, repu-tational, country, and operational risks, which could best be mitigated by having inside lawyers working closely with other business and staff functions in company operations. These included endemic corrup-tion in new markets, new employees in those markets with different values, complex global supply chains, and ever-present challenges of doing business in economies with deep government involvement in “markets.” Moreover, regulatory trends continued to pose increas-ing challenges and risks, including, for example, treating accounting issues as legal violations; criminalizing aspects of regulatory enforce-ment; setting rules through enforcement rather than rule-making; an exponential increase in the size of criminal fines, civil penalties, and private settlements; and confronting multi-front wars as public and private parties investigated or sued corporations in multiple juris-dictions. All this was accompanied by striking increases in the sheer number and complexity of regulations in multiple jurisdictions, in the reach and voice of nongovernmental watchdog organizations, and in 24/7 “above-the-fold” or viral electronic media coverage of corpo-rate misdeeds. Broadly speaking, all these trends combined to make “business in society” issues of vital interest to CEOs and boards of directors.

Finally, the raft of outsized scandals since the turn of the century underscored the need for boards of directors, CEOs, and senior busi-ness leaders—including, importantly, the General Counsel—to build strong integrity and risk disciplines into corporate business processes. These corporate failures began with Enron and WorldCom and were followed by a torrent of subsequent scandals, including HealthSouth billing fraud, Siemens and Wal-Mart bribery, BP’s drilling rig explo-sion, the Toyota and GM product safety issues, and the plague of problems affecting the financial services industry (misdeeds relating to the mortgage market, money laundering, the Madoff hoax, disclo-sure failures, and collusion on LIBOR and currency). These front-page

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problems had a dramatic impact on companies: time and effort responding, executives fired (and indicted), huge expenses for internal forensic efforts, huge costs for external criminal and civil sanctions, and loss of reputation. But, the problems also affected stakeholders: market cap tanking, employees laid off, customer relations shredded, suppliers losing wounded corporate customers, creditors stuck with debt, and communities losing business and tax base. Importantly, the scandals also scarred the reputations of boards of directors and, not-withstanding director and officer insurance, even imposed personal financial loss on some directors in catastrophic matters like Enron and WorldCom. As a result, another boost was given to the trend toward hiring highly talented, highly sophisticated General Counsel with rep-utations for independence who could help prevent improprieties and who could credibly help respond to legislators, regulators, media, and NGOs when such improprieties occurred.

These reinforcing causes produced the inside counsel revolution in the United States. That revolution was driven by the necessity of a changing business environment—and, if it endures as I think it will, that necessity will sustain it. Right-minded companies needed broad-gauged GCs. Today, the revolution is now reflected in the attention paid to the subject: special legal trade magazines covering the inside counsel “beat”; regular stories in the mainstream media; innumerable conferences pitched to inside lawyers (or to law firms trying to under-stand the strange new law department beast); and increasing attention to the role of General Counsel and corporate law departments in law reviews, in books, and in courses at law and business schools. It is also reflected in directional changes in the profession itself—for example, the growing number of lawyers working inside corporations; the expo-nential emergence of outside vendors selling a wide array of services to inside law departments; the decline in corporate spend on outside law firms for basic matters (although huge litigations, transactions, and bankruptcies will always boost outside firms); a whole new executive recruiting specialty devoted to finding and hiring lawyers for corpora-tions; the growth of associations of inside counsel; and the increase in the number of General Counsel who are among the five most highly compensated executives listed in the proxy statement.4

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A personal note about these developments, which I have described schematically. When Jack Welch offered me the job as GE’s General Counsel in the spring of 1987, I was a Supreme Court and appellate litigator. I had never met him. I had not done one hour of work for GE. I knew not a single soul at the company. I said to Welch, “You know I am not a corporate lawyer.” He laughed: “You’ll figure it out.” He wanted to transform the function and upgrade the talent both at head-quarters and in the operating divisions. But, the simple fact was that, beyond those broad aspirations, neither he nor I had clear, precon-ceived ideas at the time of what needed to be done, what would happen in GE, or what the broad trends were that would transform the role of inside counsel in so many companies. Only through a glass darkly did I perceive the outlines of the revolution in which I was fortunate to play a part. Experience, not theory, was my great teacher.

d. The PresCriPTiVe PersPeCTiVeAlthough this book is about the General Counsel and inside lawyers, it is rooted in the framing prescriptive concept that the ultimate mission of corporations, especially global companies, should be the fusion of high performance with high integrity and sound risk management. I ask the reader not to move too quickly past that phrase—high perfor-mance with high integrity and sound risk management. It is elemental to a corporation’s commercial success and to its standing in society. In my more than 30 years in big institutions, including almost 20 in one of the largest and most complex corporations in the world, I came to understand that the implications of that straightforward phrase were multi-faceted, complex, and, ultimately, profound.

High performance means strong, sustained economic growth through provision of superior goods and services, which in turn pro-vide durable benefits for shareholders and other stakeholders upon whom the company’s health depends. Such performance entails an essential balance between risk-taking (the creativity and innovation so essential to economic growth) and economic risk management (the financial, commercial, and operational disciplines so essential to the soundness and durability of business institutions). In my view, it

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means a corporation-specific optimization of the legitimate interests of key stakeholders—shareholders, creditors, employees, customers, suppli-ers, and communities—over the short, medium, and long term to create value for all, as I discuss in Chapter 8 on governance (pp. 275–315).

High integrity means robust adherence to the spirit and letter of formal rules, both legal and financial; voluntary adoption of bind-ing global ethical standards that go beyond existing rules, including balanced approaches to public policy and political processes; and employee commitment to core values of honesty, candor, fairness, trustworthiness, and reliability. It involves understanding, and miti-gating, other types of risk—beyond direct economic risk—that can cause a company catastrophic harm: legal, ethical, reputational, com-munications, public policy, and country/geopolitical. The core values of the company, as expressed through the core values of its employees, are essential to strong relationships inside and outside the company. These values, in turn, can only exist when the company adheres to the spirit and letter of the formal rules, when it adopts appropriate global ethical standards, and when it makes these precepts operational at all levels of the corporation.

The fusion of high performance with high integrity must, as noted, include sound management of economic and noneconomic risk. When I use the short-hand “performance with integrity” in what follows, the reader should understand that “with sound risk management” is always implied. But, high performance with high integrity and sound risk management is not just about risk mitigation. It is about creating affirmative benefits in the company, in the marketplace, and in the broader global society. Achieving high integrity obviously involves resources and cost. Sometimes, business leaders will face a trade-off between integrity and performance, between ethics and financials. But, the fusion of performance with integrity and sound risk management ultimately creates value in a wide variety of ways: attracting, motivat-ing, and retaining superb talent; increasing productivity; enhancing customer loyalty; mitigating or eliminating far more expensive risks; increasing brand value; allowing premium pricing; creating opera-tional efficiencies; and enhancing reputation with stakeholders both inside and outside the corporation.

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Ultimately, I believe, high performance with high integrity and sound risk management creates fundamental trust among sharehold-ers, creditors, employees, recruits, customers, suppliers, regulators, communities, the media, and the general public. This trust is essential to sustaining the corporate power and freedom that drives the econ-omy—trust that has dramatically eroded over the past quarter century due to stark corporate scandals and stunning business failures. Over the past quarter century, many major corporations, especially transna-tional ones, have increasingly accepted this broad goal of high perfor-mance with high integrity. To be sure, each company might formulate those goals with different words. They may implement them with varying degrees of intensity, resources, and rigor. And, these broad goals do not, of course, command assent at the top of all major, global companies, either in word or deed, as reflected in the constant drum-beat of corporate scandal. But, directionally, I believe this is where global corporations are going—and must go.

In my last book, High Performance with High Integrity (Harvard Business Press, 2008), I addressed CEOs, who have the fundamental leadership responsibility for melding performance and integrity in a global corporation. I tried, in brief compass, to articulate a view of corporate purpose, explain why it was important, and describe how CEOs could implement it by following certain key principles and practices. In this book, I write primarily for inside lawyers, and those who work with them, to give my views on the critical role that they play as experts, counselors, and leaders in assisting the CEO, and the board of directors, to carry out this fundamental mission of global capitalism. It goes into more detail on how to attain a high performance with high integrity company through exposition of the GC’s roles and responsibilities. It is a complementary, but quite dif-ferent perspective. The book also articulates a capacious vision of lawyering—of the lawyer-statesman—which is far, far broader than what is taught in law school or tested on the bar exam. It is, in my judgment, a vision of the ultimate lawyers’ role, as professionals and as citizens, that is suited to the complex, multi-faceted nature of the real problems that real lawyers in real institutions in real time face constantly.

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As a lawyer-statesman who has a central role in setting the direction of the high performance with high integrity corporation regarding both opportunities and risks, the GC must navigate complex inter-nal relationships (with business leaders, the board of directors, peer senior officers, the corporate bureaucracy, the legal organization) and challenging external ones (with diverse stakeholders, governments, NGOs, and media in nations and regions across the globe). The posi-tion of General Counsel, properly viewed, presents a rich, consequen-tial opportunity to discharge and define what it means to be a great lawyer in the complex setting of the modern corporation—proactively assisting definition and implementation of growth strategies, helping or leading efforts to create an integrity culture, building systems and processes for compliance with law and ethics, addressing other types of economic and noneconomic risk, rebalancing relations with out-side counsel, leading a global legal organization (and other corporate functions), solving complex problems across all those domains, and ultimately being both a partner and a guardian in helping define cor-porate citizenship for the enterprise.

Beyond speaking to current inside counsel in the United States at all levels of corporations, I especially hope this book will be of use to an emerging generation of General Counsels and inside lawyers, both here and across the globe, who seek to define a more central and pro-active role inside their business. First and foremost, it is written for that next generation. I also hope that the book will provide an important perspective and framework for many other non-lawyers around the world who are deeply concerned about the role of the corporation in the world economy and the role of law and ethics in the corporation. Although I write from the perspective of a large, global company, I believe that many of the ideas here are applicable to medium and small enterprises as well if the CEO and board of directors have a perfor-mance with integrity vision. Some companies will have a BMW Series 7 approach; others, who are more resource constrained, will have a MINI Cooper approach. But the prescriptive issues must be faced no matter how large or small the company. Importantly, I hope that CEOs and boards of directors in enterprises of all shapes and sizes in all cor-ners of the globe will engage with my detailed vision because, without

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their understanding and support, the practical ideal of the General Counsel as partner and guardian cannot be realized. I wish, too, that the perspectives offered here will interest others concerned with the rise and fall of corporations: lawyers in private law firms, regulators and media, and experts on business and society in academia and in think tanks.

I have a special hope that the framework will also have salience for General Counsel and other lawyers inside a wide variety of public, private, and nonprofit institutions, not just the publicly held global corporation. The independent expertise, judgment, and vision of the lawyer as expert, counselor, and leader should also obtain when inside lawyers work with Presidents, Cabinet Secretaries, Chairs of Congres-sional Committees, University Presidents, Foundation CEOs, or other leaders in public, private, and nonprofit institutions—and when they occupy comparable positions in nations all across the globe. Finally, at a time when economic issues threaten to obscure the ethical respon-sibilities of lawyers as professionals and as citizens, I put forward a contemporary vision of the lawyer-statesman ideal and the continu-ous quest for what is “right” in an attempt to refocus attention on core issues of “ethics” and “service” that have long motivated young people to pursue a life in the law. I try to demonstrate that these remain funda-mental concerns even in complex, profit-seeking, global corporations.

The book’s prescriptive perspective, ultimately, is in setting forth a framework for identifying a set of sequential, interconnected, and first-order issues, which I believe corporations—and General Counsels and inside lawyers—should address. This framework entails systems and processes to address those issues and, ultimately, to create the vital performance with integrity culture.

But I should also say what this book is not. First, it does not advance a particular political or economic ideology; it is not intended to be either “progressive” or “conservative.” I raise a broad array of issues. I argue strongly for addressing those issues energetically, fairly, can-didly, and systematically. I offer my point of view. But many of these issues are “open-textured” and may be answered in different ways by different corporations that identify and weigh “relevant” factors dif-ferently. Second, although I will weave into the discussion my direct

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personal experience on these issues—and my mistakes—this is not a memoir. It is instead a personal vision of the mission of the corpora-tion and the role of the modern General Counsel. Nor does it advance the “GE approach,” as I saw it. GE was unusual, if not sui generis, in terms of size, diversity, and global complexity. My observations, which I hope apply broadly to enterprises of all shapes and sizes, are based on research, writing, speaking, teaching, and conversations with many other leaders, not just my own GC experience (important though it was). And, there are certainly ideas offered here that I either had not thought of when I was at GE or, if did, failed to implement completely, if at all. Third, as I will emphasize later, the book does not argue that the General Counsel has a monopoly on shaping the normative posi-tions a corporation takes. To the contrary, while the General Counsel, as lawyer and as citizen, should offer a strong, constructive perspective in high-level discussions and debates, he is a subordinate of the CEO and he operates in a complex web of shared authority with senior cor-porate staff and operational peers. He is an important voice on per-formance, integrity, and risk, with a vital, distinct point of view and strong proactive role. But he is one of a limited number of important voices. In corporations those voices also include a CFO- statesman, an HR-Leader-statesman, and a business leader-statesmen. The broad concerns this book addresses should command the attention— stimulate the views—of all the corporation’s senior executives.

Although this book offers a prescriptive framework, it is built on a hard substratum of experience, trying to balance the ideal with the real, the aspirational with the actual. It seeks to discuss the obstacles that can moderate, alter, or defeat the core prescriptions of the Gen-eral Counsel as lawyer-statesman and partner-guardian in the ser-vice of high performance with high integrity global companies. Such constraints include inherent pressures for corruption in capitalism, resource limits or cutbacks inside major corporations, business leader lack of vision, negative attitudes about lawyers and law, dysfunctional corporate culture, barriers in non-U.S. settings, and more limited resources inside medium and small enterprises. It is very possible that the ideals advanced in this book are achievable, but it is by no means certain. As I discuss at the end, the inside counsel revolution will not

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be rolled back, but its future growth—its breadth, depth, and rate of increase both in the United States and around the world—is an open question.

e. Core ConCePTs and Key issuesIn the rest of this book, I explore in more detail the role of the Gen-eral Counsel and inside lawyers through the examination of three core concepts and through a critical assessment of eight core issues.

Building on the fundamental concept of high performance with high integrity, other core concepts are the bedrock of my prescriptive analysis. I hope to advance, in more detail, the lawyer-statesman ideal for addressing the “what is right” question in the context of a complex global business enterprise; explain how to resolve the partner-guardian tension—the ever-present conflict between helping the business lead-ers achieve performance goals, but also assuring that the corporation acts with integrity and manages risk; and illuminate the nature of a performance with integrity culture, which can withstand the unrelent-ing pressures, at the core of capitalism, for unethical, illegal, and ill-considered activities.

I then turn to the essential prescriptive approach on eight top-line issues, which are the core priorities of inside counsel: compliance, eth-ics, risk and crisis management, governance, citizenship and public pol-icy, the global legal organization, law firms and alternatives, and future possibilities and obstacles. I do not, however, venture into the specifics of how particular legal domains should apply inside a corporation: for example, antitrust, litigation, mergers and acquisitions (M&A), taxes, trade, intellectual property (IP), labor and employment, environment, health, and safety. To do so would turn this into a multi-volume work.

There is not a separate chapter on globalization because that per-spective is an essential aspect both of the core concepts and the key issues. I discuss the globalization dimension in different contexts throughout the book. Another major theme worth calling out here, but that is woven into all the chapters, is an emphasis on function not form. Most of the hard issues in corporations require an interdisci-plinary, cross-functional approach. Breaking down the silos—or, to

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mix metaphors, making all the staff and business elephants dance together—is vital. And each corporation has its own culture and rhythms. The CEO must make sure that the right people are at the table on decisions and the right people work together on execution—and that the right checks and balances exist alongside the endless drive for productivity and efficiency. But debates about formal titles and organizational boxes—board chair v. lead director, centralized v. decentralized legal organization, reporting relationship of the Chief Compliance Officer—are far less important than addressing the sub-stantive and procedural issues with the right mix of talent, the right level of attention, and the right balance of efficiency/speed and the checks/balances.

There is now an increasing amount of writing—from lengthy aca-demic articles to short, law firm marketing blogs—on inside counsel and their issues. My goal here is not an encyclopedic and exhaustive literature review. Nor is it intended to be a “how to” manual on work-a-day issues. Rather, it is to present my own take on the prescriptive essence and key realities of being a General Counsel: top priority issues, first principles, hard decisions, and inevitable constraints. It is a prescriptive essence that has emerged from the past—from the inside counsel revolution that occurred over little more than a generation. It is a prescriptive essence that I believe will remain valid for a long time into the future, even in an era otherwise characterized by constant change.

It is, in some respects, my last will and testament on the role of Gen-eral Counsel in the high performance with high integrity corporation—offering views accumulated over nearly three decades with the wish that they will have some benefit, however modest, for those who follow.

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11/10/2017 The Secrets of Superstar Associates | Young Lawyers Division

https://www.americanbar.org/groups/young_lawyers/publications/tyl/topics/professional-development/the_secrets_superstar_associates.html 1/7

The Secrets of Superstar Associates

Tom Hentoff

Tom Hentoff is with Williams & Connolly LLP in Washington, D.C.

Superstar associates are easily spotted. They are young attorneyswho establish that they can handle as much responsibility as isthrown at them, and want more. Long before they are up for avote, their election to the partnership is all but a foregoneconclusion.

What separates the superstars from the rest of us? Why do someassociates so clearly outshine their peers, even those withseemingly equal or greater natural gifts? Do superstars sharecertain habits or routine practices foreign to the merely good, oreven very good, associates? And do those habits and practicessimply arise from innate characteristics, or can they be learned?What can a new lawyer learn from superstar associates to helpearn trust and gain responsibility?

In search of answers, I interviewed a dozen young partners whomcolleagues had identified as former superstar associates. In wideranging and candid discussions, they told me what they thoughtcontributed to their success. They also gave advice.

Although one cannot bottle “essence of superstar associate,” onestill can distill those traits and practices into secrets of success.These are secrets not in the sense that anyone has hidden themfrom anyone else, but in the sense that many—even experienced—lawyers seem unfamiliar with them. Some traits and habits may beemulated easily; others cannot. Each helped the superstars win therespect and reliance of the partners at their firms.

Superstar associates work hard

Although you might say that the significance of hard work is notmuch of a secret, note four things about these lawyers’ approachto hard work that distinguished them from their peers.

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First, the lawyers I spoke with emphasized that when they put inlong hours as associates, they did it not for “face time” butbecause it was necessary to do a firstrate job on the timeconsuming projects that newer associates are given, and, thus, todemonstrate their reliability. “Partners will have more confidence inthe associate who has dug into the facts and has a command ofher part of the case. Then, that is the person who will get theopportunities.”

Second, they said that working hard gave them more control overtheir own dockets and, thus, more choice about the work they did.They explained that if they were proactive and volunteered for thework they wanted to do, and were legitimately busy doing it, theycould avoid being sucked into the bottomless cases in which theyhad no interest.

Third, many in the group said that some of their best careeropportunities came when they were already fully committed butsaid yes anyway to work that gave them great experience. “Whenopportunity knocks, you need to take it,” said one trial specialist.“There’s a strong human incentive not to, but the bestopportunities seem always to come at the most inconvenienttimes.”

Fourth, they said that at the end of each year, despite their hardwork, they rarely were among the topbilling associates in theirclass, because they refrained from working for work’s sake and gotoff the treadmill when case commitments permitted.

When asked about balancing work and personal life, severaladmitted that it is especially hard in early years to do a great jobon cases and have a lot of time for other things. They emphasized,however, that once you establish a track record of success andreliability, partners don’t feel a pit in their stomachs when youleave at 5 PM to play volleyball, or go to the beach for a week.

Superstar associates care about building anexcellent reputation

Superstars understand that from their very first assignments asnew associates, partners judge their performance and discuss itwith other partners. As one respondent cautioned: “Your reputationis set early on. You will spend the rest of your career fighting orbenefiting from your early reputation.” “Assume early on,” advisedanother, “that the first few projects you do will have anoverwhelmingly important effect in creating a reputation for you.You will create a reputation—are you a ‘goto’ associate or not?”

Superstar associates think like partners do

From the earliest point in their careers, these lawyers gavethemselves assignments in addition to those the partners gavethem. One advised: “It’s important to figure out what else shouldbe done on the case, to participate in the team’s strategizing.

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Don’t be afraid to look into an issue on your own and spend a littletime with it, to see if it should be suggested to the team.”

Many agreed that “partners want an associate who takesownership of a case. They don’t want to always have to check inand check up on the associate.” Cautioned another: “If thepartners feel they are managing you and doublechecking on you,you are not on track.”

Thinking like a partner, especially for young attorneys, also meanscarving out areas on the case they can take over, graduallybecoming indispensable. Almost all of the superstars had storiesabout volunteering early in their careers to master some large,complex, and often unpleasant aspect of a major case. Theylearned the critical facts better than anyone else.

Superstar associates view everyone as a client

One of the group said that he expressly advises young associatesto “treat the partner like a client. By that I mean learn all the facts,analyze them, figure out the legal issues, anticipate questions, andpropose reasonable alternatives about how to go forward. Whetherit’s a memo or a deposition, do what you think the partner woulddo, and then present reasonable alternatives for her to chooseamong, because she’s in charge. If you do that right, it will leadher to trust you—because you will have thought of many of thethings she would have thought of. The next time an importantmatter comes around, she’s thinking, this guy thinks the way I do.”

The superstars provide this type of client service to everyone withwhom they deal—not just clients and partners but also fellowassociates, staffers, judges, and even opposing counsel. Theylisten to other people’s problems and then make the effort tounderstand and present solutions. Thus, one respondent, asked toname a trait he believed uniquely contributed to his success,answered: “Probably the thing I’m best at is I’m a good listener.”

Generally, giving client service to nonclients means conveyingrespect, appreciating urgency, understanding real and perceivedneeds, and making sure to meet and exceed expectations. “Youcan always tell how people treat others. The very best lawyerstreat their secretaries and legal assistants impeccably. I’ve alwaysfound it to be uniform in that regard. By treating the people whowork under you with respect, you empower your team membersand make them an effective team.”

Superstar associates treat their professionaldevelopment like a case on their docket, withthemselves as the client

These lawyers extend the idea of client services to themselves.Unlike most other associates, they plan for their own professionaldevelopment, set goals, and examine bigpicture and smallpictureitems to achieve those goals. Many associates, said one, “don’t



realize they can apply their talents and hard work not only to theircases but also to planning and controlling their work life.”

Superstars seek out the cases they want to work on and planahead to be too busy to take on the less satisfying cases that willdo less to develop their talents. “Take initiative for your owncaseload,” advised one. “Don’t wait to be called by the assignmentpartner. Make the assignment partner your last resort. For me, myfirst assignment from the assignment partner was my last.”

Some of the respondents marketed themselves within their firmsby figuring out where there were unmet needs, for instance, in aspecific practice area, then setting about to fill them. One madehimself an expert in electronic discovery because he knew thatwould benefit everyone in the litigation department. Anotherworked on regulatory litigation that was important to the firm eventhough his colleagues found it boring. It turned out that he enjoyedthe federal court issues the cases raised, and he sought out moreof them.

Superstar associates think like students but don’tact like they’re in school

They consider their work to be an extension of their education andconstantly take the opportunity to learn by example—whether byseeing how a senior attorney analyzes a case or by seeking to workfor an excellent brief writer.

Superstar associates want to learn more about all aspects of thepractice. They are more interested in learning than in protectingtheir time or their feelings. Thus, more than one said thatassociates should try to work with that talented but difficult partnerwhom others avoid. Advised one respondent: “Always seek to workwith the best people. A lot of associates shy away from partnerswho seem difficult. I’d urge the opposite. Seek them out; those arethe people you learn the most from.”

Many emphasized that “student mentality” is rampant in law firms—and a major impediment to success. Associates with a studentmentality treat completing an assignment as a goal in itself, ratherthan as part of a larger effort.

By contrast, the superstars understand early on that they aremembers of a team working for a common goal—the best result,within ethical bounds, for the client.

Superstar associates are enthusiastic

Like anyone else, partners want to work with someone whoappears to respect them and enjoy the work they do together.Superstars know this and typically convey enthusiasm when theyare given a project.

Speaking in their roles as partners, the interviewees agreed that itis depressingly common to give an associate an assignment and bemet with a sigh or other offputting body language that implies the



partner or the work is viewed as unpleasant. “I really don’t need tosee associates roll their eyes when I give them an assignment. Iwill take a trooper over a prima donna who [requires my] climbingover a wall to deal with each time.” What you should want tocommunicate, she explained, is that “you are a pleasure to dealwith and you can be taken seriously as someone who could have aposition of leadership.”

Nor should this attitude disappear when the going gets tough. “Anassociate who’s smiling at 2 AM, that’s what I remember. That’show I was. People who still have a great attitude even while underpressure,” one respondent recalled. “I had a reputation forenthusiasm about my cases. Most partners enjoy what they do. Ifyou do, too, they see you as a kindred spirit. And a client likes tosee enthusiasm, too. They’re more comfortable handing somethingto someone who is enthusiastic about it,” advised another.

Superstar associates work to develop goodjudgment

The successful associates consistently emphasized that goodjudgment was possibly the most important quality for success.Said one: “If I had to boil down being a superstar to one quality,it’s good judgment. That’s something I’ve been learning in my tenplus years. The real superstars cut through the legal and otherissues to evaluate the client’s needs and recommend the bestcourse of action.”

At a junior level, according to another, good judgment meansremembering to “watch, listen, and learn.” This includes figuringout what to say—or not to say—in a client meeting, what to dowhen something ugly happens in a document production, when toask for help, how much work to take on, and a hundred otherthings.

An important part of exercising good judgment is knowing you willmake mistakes. How to deal with mistakes is one area in which therespondents were unanimous: Address them quickly, fully, andwithout defensiveness or fingerpointing.

Two speakers voiced the view of many: “When you’ve made amistake in a matter, raise it immediately,” advised the first. “If youdon’t know whom to talk to, figure that out quickly. Share theproblem, as much as you might not want to do it. Time has a wayof turning small mistakes into permanent mistakes.” Explained thesecond: “Develop a plan of action, and go to the partner. Say, ‘Imade a mistake, I screwed up, I should have asked for this fromthe other side. But here’s my plan to fix it, what do you think?’Hiding mistakes is very tempting but a bad idea. They almostinevitably come out, and then you look not only sloppy but alsosneaky, which is fatal.”

Superstar associates cultivate informal mentors



Associates emphasized that they didn’t figure out everything ontheir own. They were helped, they said, by talented colleagues whogave good advice about solving particular problems and helpedthem with career development in general. Indeed, they learnedmany of these secrets from their informal mentors.

Superstars appear to understand two things that many otherassociates do not. The first is that, from an associate’s perspective,the partnerassociate relationship should be a collegial one, not afacsimile of a unionmanagement dispute. No one with whom Ispoke even started out with the “us vs. them” mentality that someassociates seem unable to shed.

Second, most partners want to be asked for advice and will maketime to give it even when they are busy. To hear that someonevalues your opinion is a tremendous compliment. And asking apartner for career advice validates that what the partner does for aliving is worthwhile.

One “nonsecret”—a trait the superstars did not share—is morethan worth noting: hubris. They admitted to being procrastinatorsor poor organizers, having bad memories, needing to work on theirwriting, and fearing public speaking. Their success is not simply aproduct of raw talent—it comes also from taking a broad andstrategic view of their careers and learning how to develop them.

Superstars are perceptive enough to understand what othersexpect of them and are disciplined enough to deliver it. They enjoythe intellectual stimulation, competition, and problemsolvingopportunities that a legal career offers; they proactively seek outthe assignments that give them these opportunities; and they viewtheir own shortcomings as simply part of the problems that aretheir job to solve.

Finally, it is evident that even with talent, intelligence, and drive,being a stellar associate is not easy. That’s one of the reasonsthere are so few of them. And not everyone wants to be, or shouldwant to be, a superstar. Not every lawyer wishes to put in all thetime and effort that they do, especially given important interestsand obligations outside work. Being a successful spouse or parenttakes a lot of hours and effort, too.

Regardless of your aspirations, recognizing the habits and practicesof superstar associates could help you improve your performanceas a lawyer in a team environment and let you take more controlover your career. And if you discover along the way other habitsand practices that also help, don’t keep them a secret.

The full version of this article originally appeared in the Spring2006 issue of Litigation journal, volume 32, number 3. Reprintedwith permission. 2006 copyright by the American Bar Association.All rights reserved. Litigation magazine is a benefit of membershipof the Section of Litigation. Learn more about the Section ofLitigation at www.americanbar.org/groups/litigation.

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Midcareer Malaise

BY LESLIE A. GORDON

SEPTEMBER 2008 (/MAGAZINE/ISSUE/2008/09/)

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Seventeen years into his career as a plaintiffs lawyer, Jeb Wait grew weary. He was tired of battling with the opposition, ofcourt deadlines and of dealing with dishonest professionals.

For Wait it was something akin to a midlife crisis, and he decided to redirect his career into consulting for mass tortpharmaceutical litigation. The Houston lawyer, who also has a medical degree, says he is much happier after the shift.

“Midcareer,” he explains, “is when you wonder if what you’ve been doing was really what you wanted to do, while alsowondering if you have enough time left to do something else that you really want to do.”

Call them the Jan Bradys of the legal profession—those lawyers in the middle. Typically, they’re 10 to 15 years out of lawschool and, if they’re practicing at law firms, are senior associates or junior partners.

A lingering identity crisis can present itself when these attorneys hit the proverbial fork in the road. Thisis the point at which they are either going to make partner or make a change, the point at which theyhave a command of their subject matter but need to bring in more clients, the point at which—like Wait—they’ve become bored or weary and need to shake things up.

These midcareer crises are occurring earlier because the practice of law, particularly at large law firms,has changed. In the past, lawyers worked as associates for five or six years, made partner and thenspent another 10 to 15 years practicing, according to Hindi Greenberg, a personal coach for lawyers.

“Then they played a lot of golf and took it easy,” adds Greenberg, founder of the Nevada City, Calif.-based Lawyers in Transition consulting service and author of The Lawyer’s Career Change Handbook.“Now if you’re going to make partner, it takes 10 years. And senior partners are expected to work ashard and bill as many hours and get as many clients as other partners, or the firm will ask you to leave.”

As a result, a senior associate up for partner or a newly minted junior partner is smack in midcareer.

“Look at the [law firm] attrition rate. Eighty percent [of lawyers] leave large firms by the fifth year,” addsDebra Bruce, a Houston-based attorney career coach.

“A lot of young lawyers are reconsidering options. It’s natural when you’re about 40 years old to startthinking [about making changes]; in law it happens a bit sooner because lawyers are not happy.”

In her practice advising attorneys, Bruce sees more and more junior partners complaining aboutbusiness-development demands, prompting a re-examination of their previously unquestioned careerpaths.

Houston lawyer Bill Crook, for example, was eager to leave those business-development demandsbehind him—not to mention billable hours and the collections pressures of junior partnership. He made a

midcareer switch from law firm partner to associate general counsel of a real estate investment trust.

“You may be a star associate before you make partner; but then you instantly become the lowest partner on the totem pole,”Crook says. That identity shift contributed to his decision to take the in-house opportunity. Though a midcareer job changedid create some anxiety for Crook, he describes giving up the liabilities of law partnership as a “hallelujah moment” in hiscareer.

DEFINING CHALLENGES

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Brian Thompson Photo by CallieLipkin Aging by Joe Mullins

Michael Hallock Photo by CallieLipkin Aging by Joe Mullins

Hitting the junior partner level brings “a challenge to define yourself,” says Amy Van Zant, a partner in the intellectualproperty group at Heller Ehrman in Palo Alto, Calif. “There’s an identity crisis: figuring out all over again who you are andwhere you fit in. It takes time finding your own footing—just like when you’re a new associate, but there’s a lot less hand-holding. It’s up to you. It takes time to find your sea legs. But once you do, it’s exciting.”

At big firms, being a midcareer lawyer means having more direct responsibility in working with clients,plus new administrative tasks—such as associate evaluations—that are unrelated to the practice of law,Van Zant says. So far she hasn’t felt pressure to suddenly become a big moneymaker for the firm.

“My role is to provide really excellent service to the clients we have,” she explains. “We [as midcareerlawyers] are the workhorses. We’re the direct connection to the associate team. I don’t feelundervalued.”

The midcareer lawyer has unique opportunities unavailable to younger attorneys. Tamara Pow, forexample, spent her early years “learning and working on other lawyers’ clients.” But at midcareer shefound herself a primary adviser to clients, and that expertise and seniority enabled her to leave large-firm life and establish her own firm, Structure Law Group, in San Jose, Calif. Unlike when she worked atthe big firm, she now concentrates on her preferred specialty of real estate law and has a more flexiblework schedule.

The move—eight years out of law school—was “an excellent midcareer report card,” Pow adds. “When Ileft the firm, I was not allowed to solicit clients. I simply announced a change of address. But almost allof my clients came with me. You don’t necessarily get a lot of feedback [on your practice] otherwise,”she says. “That kind of loyalty always makes you want to give them better and more personal service. Itopened my eyes to how important relationships are with clients.”

One issue faced by anyone at midcareer, not just lawyers, is mounting boredom. “The first couple ofyears, it’s exciting to say, ‘I’m a lawyer.’ You carry a big briefcase and even the minutiae is new andexciting,” Greenberg says. “But then routine sets in.”

To combat that monotony and find renewed excitement, Greenberg recommends that midcareer lawyersfind ways to do more of what they like doing, whether it’s making court appearances, writing or doingresearch. That may require volunteering with the local bar or a pro bono program, Greenberg says.

Alternatively, lawyers should seek excitement in their free time. “Try skydiving,” she says.

Making it through the midcareer doldrums is largely about a person’s mindset, Greenberg adds.“It requires a change inattitude. The glass should be half-full. Law has a lot of tedium and repetition, a lot of crossing the T’s. But every businesshas tedium, so lawyers need to get over it.”

For her part, Van Zant says she has a positive view of the midcareer phase. “I haven’t hit that [boredom stage] yet. I saw theperiod as a trajectory of growth. I had new responsibilities. There’s nothing boring about it.”

But many attorneys in the middle of their careers have a misguided, grass-is-greener impression ofother jobs, according to Greenberg. “I hear a lot of, ‘Look at what so-and-so is doing,’ ” she says. “That’sthe reality check I have to work on with my clients and disabuse them of the glamour of these things.”

For example, Greenberg cites the attorney who hates the stress and egos of law practice and therelentless editing by senior partners. Then that same lawyer proclaims he wants to be a screenwriter,which also involves stress, egos and getting edited. “Another lawyer tried being a chef, but found it toostressful so he went back to law,” Greenberg says. “He told me, ‘If you want stress, be a chef!’

“Other lawyers tell me they want to be agents. I explain that they’ll sit in their offices and write contracts.It’s not lunch with the stars.” For lawyers who think cooking, screenwriting and similar jobs areglamorous, Greenberg says, “I advise them to do it as an avocation.”

STAYING POSITIVE

David McAtee, an antitrust and securities litigator at the Dallas office of Haynes and Boone, gives talksto lawyers about staying creative and passionate midcareer.

“The practice of law—as distinguished from the profession of law—is cluttered with more mundaneconsiderations of billing time, satisfying clients and juggling a seemingly endless array of obligations,” heexplains, adding that many attorneys entered law school because they were idealistic about truth,fairness and justice. Slowing down and being solution-oriented rather than problem-oriented can helplawyers find satisfaction, he says.



In one program that McAtee gives on this topic, he encourages midcareer lawyers to strive to develop acalm confidence when people begin placing more demands on their time. “As stress builds, assure yourself that you will beable to handle the additional work with the expertise and attention to detail required of a lawyer at your level or, alternatively,you will be able to shift priorities, communicate with colleagues and enlist the help of other people to handle the project inthat manner.”

McAtee similarly recommends that lawyers continually examine and adjust their approach to work. “I watch lawyers I respectand I consider whether any of their habits, no matter how small, would improve my performance.”

According to McAtee, studying the most successful lawyers of this generation reveals a common thread: They love whatthey do for a living. “They are happy being a lawyer or at least happier than they would be in some other profession. Andyou get the sense that their professional life, as demanding as it is, enriches their personal life in a way that makes sense tothem. You can tell that they have chosen how they want to practice law, and their choice suits them well.”

Attorney coach Bruce adds that the lawyers who “get detached from their values, from the reasons why they wanted to be alawyer,” are the unhappy ones. She recommends that midcareer attorneys get back in touch with why they wanted topractice law in the first place. “They need to keep the meaning in it so that even the mundane tasks are tolerable.” This sortof midcareer analysis can be assisted by a coach or a counselor, even a spiritual leader, she says.

Similarly, getting an assessment from an organization like the Johnson O’Connor Research Foundation, which helps peopleidentify their aptitudes, can also assist in refining goals midcareer. Learning about your abilities is important, Bruce says,because “if you’re not using natural talents, you will be dissatisfied.” For example, “lawyers are wordsmiths, but there are nota lot of opportunities for creative writing” in the law, which is why “you will always find at least one lawyer” in continuingeducation writing classes.

A critical step in career satisfaction is getting in touch with what brings you peace, what Bruce calls “those things that you’dget lost in doing,” and figuring out what they have in common. “I’m not a great artist, but just sitting down and painting withwatercolors relieves stress. And it’s the opposite of what lawyers do,” she explains. Also, taking care of yourself physicallyand emotionally helps prevent midcareer burnout.

Some lawyers in the middle may also be rejuvenated by switching practice areas or finding a new perspective on the samepractice, according to Bruce. “Family lawyers are now being trained in collaborative law because the practice was so hostile,it was tearing families apart—and that didn’t comport with the lawyers’ values,” she says. “The negativity of the practicecauses burnout.”

Lawyers facing this should look for ways to practice differently so that their practice lines up with their values, such aslooking for mutually beneficial solutions rather than simply seeking to beat the other side. Keeping the same practice butmoving to a different kind of firm may also help.

“The sheer hours of associates at big firms may be too much,” Bruce says. “They can do the same practice but go to asmaller firm” where the billable-hours requirement is reduced.

The good news is that switching jobs may actually be easier for midcareer lawyers than any other attorney demographic,Bruce says. Because of the attrition rate, attorneys with more than five years of experience and real skills are in highdemand. “It takes about three years for associates to be profitable for firms. They really want those senior associates, theworkhorses with whom they don’t have to share a piece of the pie,” she explains. Greenberg cautions, though, thatmidcareer moves to large firms may require that the attorney have a sizable book of business or an in-demand specialty.

‘KEEP THE GRINDERS HAPPY’

For their part, big firms are making an effort to keep midcareer lawyers happy. “Generation Y and women want a lifebalance,” Bruce explains. “The 50-year-olds don’t understand that, but they’re in a bind because there are not enoughbodies to do the work. It’s forcing law firms to think in different ways. There’s no longer a stigma about choosing a differentpath, such as opting to become an income partner instead of an equity partner.”

Some firms will offer permanent associate or of-counsel positions to these workhorses, according to Greenberg. Thoughthese lawyers might not be bringing in their own new clients, midcareer lawyers do make monetary sense for many largefirms. “In this industry, we say there are ‘finders, minders and grinders’ at law firms. Firms need to keep the grinders happy.”

San Jose firm owner Pow similarly sees firms trying to find a place for associates who are never going to make partner. “Itbrings a lot of value to be a good associate who doesn’t want to make partner,” she says. “Law firms need a good workhorseand not everyone can be out selling.”

Christine LaFollette, partner in charge of the Houston office of Akin Gump Strauss Hauer & Feld and a member of the firm’smanagement and partnership admission committees, says senior associates are the lifeblood of her firm. The firm has avested interest in helping them to seamlessly transition to junior partner without a midcareer crisis. “We make an investment



Copyright 2017 American Bar Association. All rights reserved.

in their careers through training and mentoring,” she says. “We want them to become integral parts of teams. They wouldn’thave reached this stage if they didn’t have skills.”

Akin Gump relies on offsite retreats to both woo and groom midcareer attorneys. In addition to formal sessions detailing thefirm’s strategy, the retreats provide team-building opportunities such as having lawyers work together to build bikes forunderprivileged kids. “We pull everyone out of the office environment, which helps them feel like they’re part of something,”she says. “It takes an investment to know your colleagues or partners. That’s hard to see as a young attorney becauseyou’re so busy building a skill set.”

Indeed, many newer attorneys are shortsighted about their careers, according to Wait. Planning ahead for some of thechallenges they will face as midlevel lawyers should be on every new lawyer’s to-do list. “Many junior lawyers too often try todetermine where they can make the most money in the shortest time,” he says.

THE VALUE OF FORESIGHT

Greenberg advises that new lawyers “be a little bit more selective” about picking a first job out of law school. “Don’t just takethe first job thrown at you,” she says. “Instead, think about your career path. Focus more. Look out 10 to 15 years and askyourself what you want to be doing. Do you need expertise so you can open your own practice? Do you want to go in-house? Then do transactional work. Do you want to be at a smaller or a bigger firm?”

Having a mentor early on helped Akin Gump’s LaFollette maneuver through the midcareer phase. “He took me under hiswing,” she says about her mentor. “We talked about law and the nonlaw [parts of our lives]. He helped me keep balance inmy work, and he was very influential in my keeping the passion for law practice.”

Van Zant similarly recommends that new lawyers network with senior attorneys at their own firms, “including offering toassist on client pitches.” Structure Law Group’s Pow adds that at large firms, partners are the real clients of juniorassociates. As a result, “there are political connections you need to be working on.”

The biggest career mistake that Bruce sees is new lawyers who are so worried about billing a certain number of hours thatthey put their heads down and don’t maintain relationships. “When you’re a junior lawyer, your cohorts don’t yet decide whogets the business,” she says, “but they will.”

Younger lawyers should get to know accountants, auditors, law school classmates and people on the other side of deals.“They may be referral sources down the road. Even if the CFO won’t give you the time of day, build relationships with peoplewho may be reporting to the CFO,” says Pow. “Those people will appreciate your attention and they will be CFOs someday.”

Similarly, Pow adds, if junior associates hope to one day open their own shops, they “need to become a big part of thecommunity” before the midcareer stage.

This kind of foresight takes time and energy, but it’s worth it, experts say. Midcareer “quickly changes to end of career,” Waitcautions. As a result, he advises, “don’t hesitate to make the choice to make a change. There are a limited number of yearsto enjoy what one does professionally, and very few are fortunate enough to truly enjoy what they do for a lifetime.”

INSIDE OUR PHOTO SHOOT

The models pictured in this story are young Chicago lawyers—and good sports. They were photographed by Callie Lipkin.Their images were digitally aged to show how they might appear 10 (hard) years from now, in the midst of a midcareermalaise. The digital aging was done by Joe Mullins, who handles the sobering task of aging photos of children whodisappeared years earlier for the National Center for Missing and Exploited Children.

The lawyers and their ages today, in the order in which they appear: Cover—Kelly Peterson, 30; Aminah Bhatti, 25; BrianThompson, 29; and Michael Hallock, 25.

Leslie A. Gordon, a former lawyer, is a legal journalist based in San Francisco.

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Trials and Tribulations Judge Curtis Karnow

Being a Useful Compendium of Advice for the New Lawyer and the Lawyer, Not So New, Who Perhaps Has Not Been In Court Very Recently, Including

Certain Interesting Items Not As A General Matter Considered In What Passes for Law School These Days

George Washington, sometime before the age of 16, transcribed Rules of Civility & Decent Behaviour In Company and Conversation. (Original errors in numbering have been corrected; original spelling is unchanged.) A few excerpts follow:

1st: Every Action done in Company, ought to be with Some Sign of Respect, to those that are Present. 61st: Utter not base and frivilous things amongst grave and Learn'd Men nor very Difficult Questians or Subjects, among the Ignorant or things hard to be believed, Stuff not your Discourse with Sentences amongst your Betters nor Equals. 73d: Think before you Speak pronounce not imperfectly nor bring out your Words too hastily but orderly & distinctly.

74th: When Another Speaks be attentive your Self and disturb not the Audience if any hesitate in his Words help him not nor Prompt him without desired, Interrupt him not, nor Answer him till his Speech be ended. 86th: In Disputes, be not So Desireous to Overcome as not to give Liberty to each one to deliver his Opinion and Submit to the Judgment of the Major Part especially if they are Judges of the Dispute.

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Introduction When the trial lawyer first walks into a court room for trial, he or she becomes part of a conundrum. The lawyer cares, deeply, about who wins or loses. The power of witnesses’ testimony, whether a document is admitted or not—such are the foci of the lawyer’s attention. But the judge does not care. The judge has not the slightest interest in who wins or loses, whether a document is admitted, or a witness testifies well, or at all. The judge wants to get the process right, without regard to result. The judge wants the jury to be comfortable, witnesses to be ready to testify when called, and for there to be as few interruptions to the smooth operation of the trial as possible. Trial lawyers, à la Perry Mason, like surprises (as long as they are not on the receiving end). Judges do not. Lawyers want their evidence in, and the opponents’ evidence out, without regard to the rules of evidence; and it is wonderful when a hearsay exception is held to apply only to one’s own document, and not to that of the other side. The judge only cares about whether something is admissible, and uses the same criteria regardless of the proffering party. Generally, the lawyer wants days, weeks, months indeed to put on her case and without constraint; the judge won’t let that happen. Some judges, god bless ‘em, even use chess clocks to time a case down to the minute. And then there’s personality. Lawyers usually have been living with each other for years before the date of trial. Or it may feel as if they have: there may have been ugly discovery disputes, declarations of questionable accuracy, and massive logistical problems in setting depositions. Lawyers showing up for trial bring boxes of documents, the product of interminable wrangling, delays and outright obstinacy—caused, always, by the other side. The judge, by contrast, is not heir to these misfortunes: She is bright and cheery, and welcomes both sides with pleasure. Does she know nothing of the last two and half years of abuse? Frivolous summary judgment motions? Failures to return calls? Sanctions motions? It is true. She knows nothing; and unless truly, truly compelled to learn it by reason of some pre-trial motion, she will learn nothing of that unfortunate past.

To a lawyer, it may often feel as if the judge is more interested in, say, witness availability than the substance of the testimony. Actually, this is often true. As long as the testimony is admissible, the judge couldn’t care less. Lawyers may be shocked when an exhibit—say, a computer generated reenactment—is excluded after they have spent $200,000; as if the court were oblivious to the waste. ‘As if’ is right: The Evidence Code does not list cost of an exhibit as a factor for admissibility. There are few judges, though, who have entirely forgotten their time as trial lawyers (if they were fortunate enough to have that background). Even after years on the bench, some of us may lean forward, just a little, to ask a killer question on cross examination, only to take a deep breath and lean back. We imagine giving closing argument, of course so much more focused and piercing and persuasive than that given by the lawyers. We know what it is like to schedule five experts witness in a row: The experts are always from out of town and charge for travel time, much like a buttered slice of bread always lands butter side down. But despite the memories, judges and lawyers have different interests at trial, and this is the conundrum. While judges remember what it is to practice law, most lawyers have little idea of what it is to be a judge. This guide is designed to bridge that gap. Here’s what things look like from the other side of the bench. Most of the suggestions are, once written out, blindingly obvious, patently common sense. But for lawyers wrapped up in the moment, juggling pretrial motions, preparing witnesses, or dealing with the apparent loss of a key document, these matters are often forgotten. But they should not be forgotten. Everything goes so much more smoothly and comfortably if lawyers would only attend to these hints—paving the way, indeed, for the judge and jury actually to attend to the merits of one’s case. It’s true. When counsel are professional, well-prepared, courteous to the court and others in the room (including other lawyers), then do we have the space for the skilled and experienced lawyer to flourish, able to draw the fact finder to her cause, and persuade, free of distraction.

* This is the stuff they don’t teach in law school.

3

Most of these helpful hints are just common sense, and are simply means to make it easy for the judge (or jury) to see things your way. A few random examples. Why would you speak softly to the back wall when arguing a motion? Why would you be late every morning, causing the jury to wait for you? Why would you file 35 in limine motions, risking a meager few minutes examination of each, when two of them are complicated and very important—and 33 of them are innocuous? Why would you be condescending and rude to the judge? These are not everyday behaviors, but they are common enough, and they betray an attorney who has lost sight of his or her goals.

* A final note. There’s a lot of “don’t do this, don’t do that” in these tips. I don’t mean to sound querulous. I have tried to moderate any tendency towards petulance with more lighthearted descriptions and suggestions. And that’s all these are- just suggestions. There’s no legal advice here, and only a few references to law as such (sometimes I have to: I mention hearsay a lot). Other judges and lawyers have their own list of dumb stuff lawyers do in court, and many will disagree with many of my suggestions. Send me your pearls of wisdom to feed my prurient interest, and for the next edition (if there is one). I certainly don’t mean to suggest all lawyers make the mistakes I discuss; it’s really only a small handful, and as the sub-title of this section suggests, they tend to be the least experienced (obviously). Alas, as we say with those that voluntarily attend the wide spectrum of continuing education classes given across the state, it’s probably the very people who don’t read this that should. 1. Judge’s Prerogatives & Courtroom Courtesy The judge. Why do we have to have “dignity, decency, order and respect”? Not because judges are gods or lords of the realm, but because these “are essential to the proper administration of justice…..” Blodgett v. Superior Court (1930) 210 Cal. 1, 14. We honor the office because otherwise we can’t have fair and efficient trials; it’s the way we avoid chaos and the

triumph of noise over order and information. Lawyers who forget the “why” of courtroom decorum are literally making things personal, as opposed to professional. The following suggestions are just extrapolations of that guidance: Don’t interrupt the judge. However, the judge may interrupt you; let the judge do so. The judge is trying to get you to focus on something the judge thinks is key to the decision; don’t you want to know what that is? “When a judge says ‘Is there anything else?’ he often means “I’m done.” Know when that is, and add only critical argument not previously made. Briefly. Don’t embarrass the judge, who may be a casual acquaintance or someone you’ve had in a prior case, in front of opposing counsel by assuming familiarity or referencing common friends. Opposing counsel doesn’t want to be “home towned” and the judge doesn’t want opposing counsel to think that’s what’s going on. It’s also just distasteful. (It’s true that judges should disclose any prior connections which a reasonable person might think could go to the issue of disqualification, but that’s usually the judge’s call, and they are pretty good at making a brief record on the subject.) Don’t say you’re going off the record. Ask the judge to go off the record. Do not address the court staff (while court is in session) without permission from the judge, including asking them to do a task for you such as look something up in the docket or the computer. If your judge has you mark exhibits as you proceed (as opposed to marking them in advance), it may be acceptable to ask the clerk to mark those exhibits. Don’t tell the court reporter to read anything back. Ask the judge. Don’t tell the bailiff to do anything. Ask the judge. Don’t use “Judge” in open court. Even during arraignments. Save that for chambers and side bar conferences. “Judge” is informal, and is not for courtroom use. Use “Your Honor.” Don’t tell witness to step down and e.g., draw on charts; ask the judge if the witness might step down. Never get personal with the judge.

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Never say, ‘With all due respect’ “because we all know exactly what ‘with all due respect’ means. Which means, ‘judge. You’re an idiot, but I can’t tell you that to your face, so I’m couching it in terms that won’t get me sanctioned.’” Judge Alan Jaroslovsky, U.S Bankr. Ct., as reported in the Daily Journal, November 10, 2011 p.2 Know the Law Of Inverse Proximity. Given the range of rules and constraints reaching from the US Supreme Court, to the state supreme court, appellate precedent, statewide rules of court, local rules, to individual judge’s personal guidelines and predilections, which are the most important to know and abide by? Let me put it this way: The judge’s personal guidelines were written by the judge, and best known by the judge, and likely were generated by some highly unpleasant experience he had in the past, which experience the judge really, really does not wish to have repeated. (I do not, of course refer to myself, but other judges.) Next on the hierarchy are of course the local rules, which your judge may have drafted, and which she very likely voted for. Read the Local Rules. Remember the Local Rules. Follow the Local Rules. Bad ats. In high school we had some students we called “bad ats,” short for students with ‘bad attitudes.’ They snuck off into the bushes to smoke cigarettes, had long hair (god forbid), and affected a bored, supercilious expression when caught by the administration. Every now and then we see the same folks, back from the forest I suppose, in court. These are lawyers who must believe there is some advantage in being supercilious and patronizing, who wish it known that they will not kow-tow to authority. Perhaps there are temporary benefits: perhaps some clients or witnesses are impressed. In the long term it is useless, though, and worse: their distain poisons the atmosphere, and ultimately demeans the very job description of a lawyer; the distain untimely redounds to the actor. There are cartoon versions of what it is to be a real lawyer: the fast talking, tough as nails, loud, stiletto- or saber-wielding mercenary who doesn’t take crap from nobody. But that really is a cartoon. It is not necessary to do these things to be a ‘real’ lawyer:

• Make every objection in the book;

• Antagonize the judge, hoping he’ll make a mistake because every mistake is a potential grounds for appeal;

• Think the judge is the enemy; • Manifest contempt for the judge or opposition counsel or the

opposing witness whom you think is a lying piece of cheese; • Constantly insist on making “a record,” not because you want the

judge to do anything or are truly trying to persuade the judge, but simply to control the situation, or to influence the watching jury, There is no time for long winded, pointless speeches. You can usually “make your record” in writing some other time.

On the other hand, there is no need to be timid or obsequious. The courtroom is your courtroom, and the podium is for you. You are an officer of the court, and you belong there. The judge needs you as much as you need her. Be brave. Sic Transit Gloria Mundi. Ah, how fast credibility is lost. Most interviews of judges in the local legal newspapers (they have regular columns on this sort of thing) make this point. Lawyers may gossip about judges, but I tell you, judges gossip about lawyers all the time. Indeed, there is really no one else we can talk to about our cases, the issues, and the people involved. So, often the story of one nasty episode with Lawyer X will find its way around the courthouse by the end of the day. As every judge will tell you, it takes years to build up a reputation, but only minutes to kill it. Parties and defendants know not to chew gum or eat candy in court. Please adhere to the same rules when in court or chambers. It will not suffice to inquire of the judge if he or she "would like some". (True story, as with all the others here.) Do not speak to the rear door or the floor of the courtroom, especially if you’re asking for something (like making a motion). The acoustics in many courtrooms are poor. The judge may have a microphone, but if you do not, ensure you are being heard. Do not undress for court. Do not be half dressed. Men whose attire--such as pants, tie and collared shirt--suggests the existence, somewhere, of a jacket, should actually be wearing it.

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Lawyers are old enough to be drafted, drink beer, and get married: Don’t be petulant. Don’t whine. Do not make a face, such as one might after unexpectedly eating a lemon, as a response to the court’s ruling, or spin on your heels and walk out of the courtroom as a display of what you think about the court’s ruling. Another ineffective condescending approach: telling the judge you’ve been at this “a lot longer than” he has. There are lines of sight in a courtroom. As you recall from your grade school years, you are a better door than window, and you have not become invisible in your old age. Do not stand directly in front of the bench (the “well”) or block opposing counsel’s line of sight to the witness. If you stand directly in front of an exhibit the jury might not actually be able to see it. Do not invoke as authority (1) the fact that ‘things have always been this way’ or (2) the combined thoughts of your superiors in your office. Don’t sit on the counsel table while conducting your examination or addressing the Court. You have a professional, ethical obligation to show respect to opposing counsel. Fury, or indignation, are most powerful when virtually imperceptible. Be nice to opposing counsel. No matter what. Assume the judge will read deposition transcripts, and every letter and email you send. Assume a judge on the Court of Appeal (or some lonely clerk looking for a good juicy read) will peruse the trial transcript closely, and joyfully share his spoils with other staff and judges on the panel. Staff: Be very nice to them. Treat them with the respect you would afford a judge (if you were thinking). Staff report everything to the judge, and judges hate it when they hear bad stories. 2. Time On time means getting to court early. A nine o’clock appearance requires your attendance at 8:55, not later. This includes your witnesses. If it’s a jury trial, the jury will very likely learn that the delay was you fault. One way they learn this is when the judge decides to take the bench at the

appointed time, note your absence, and wait in dead, uncomfortable, miserable silence for you to show up. Make sure your witnesses are lined up, waiting outside the courtroom, and assume testimony will go faster than predicted. It is an unfortunate fact that witnesses must wait to be called: The jury does not wait for witnesses to show up. The judge can deem your case closed if you run out of witnesses. If you are running late, make sure you have the phone number of the court’s clerk so that you can call and explain. Never waste the time of the jury. Wasting the judge’s time is bad, but most judges have it within themselves to forgive some transgressions. Wasting the jury’s time is of an entirely different quality, because judges are highly protective of the jury: These are people who are the center of the justice system, have given up their personal and professional lives for the parties, are being paid almost nothing, and have very limited ability to speak up for themselves. So to waste their time is very bad. Many sub-rules follow inexorably:

• Have witness available to fill the time. • Do not conduct long bench conferences (side bars). Reserve

lengthy argument for some other time. Anything over eight seconds is getting long.

• Do not arrive on time only to tell the judge and opposing parties that you need to discuss something—because as far as the jury is concerned, that is another delay.

• While asking questions, be able to reach the specific page of the document (such as depositions or an exhibit) right away.

• If you have legal issue, let the court and parties know the day before, and discuss the matters at the end of the day or before the jury is to arrive the next day.

• Stay in good contact with court during deliberations: Don’t drop your cell phone into water and then be out of touch. We need you here within minutes if the jury has a question.

• Swap cell phones numbers and email addresses with opposing counsel so that you may alert each other of any delays, such as ill witnesses.

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From the point of view of the judge and jury, the fundamental issue is: How long will the trial take? Perhaps your client, too, is interested in minimizing time and cost. Consider these approaches:

• Expedited jury trials. This is one of the best innovations in state practice in years. It is suited to cases with a couple of witnesses on each side. In California, each side has three hours for its case, and the jury is comprised of 8 people (6 are needed for the verdict). The case usually lasts about one day. Lawyers who have participated in the procedure give it rave reviews.

• Pre mark exhibits, and agree with opposing counsel on their admissibility. Generally there are only a few exhibits in a case which truly present difficult issues of admissibility.

• Bench trials. These can save the parties substantial time and money. Consider providing direct testimony via declaration and having witnesses only available for cross examination.

• Use stipulated facts. • Time limits. Judges are increasingly using time limits—but

lawyers too should consider conferring on suitable limits and proposing those to the court. Judges may be using chess clocks to ensure compliance with time limits.

• Issues trial/bifurcated issues. There may be an issue or two ripe for decision which will, once decided, probably lead to a resolution of the case. Bifurcate it out and try that only.

3. Motions There is no substitute for the ability to actually write English. The best, and so most effective, writing is not overtly legal writing at all, it is simply good writing. It does not have legal jargon, it does not have ‘hereinafters,’ it does not flog dead horses with string cites. The only way to write well is to read well: real literacy outside the law is usually crucial. This is not the place for an extended essay on legal writing but think of it this way: The lawyer is a translator, maintaining at the same time multiple points of view and enabling communications to and from all those points of view. The lawyer translates esoteric areas of the law for the trial judge (subsection 3-(ii)(a)(A)(xxx) of some obscure statute), grand narratives and legal notions for the lay jury, explains the legal facts of life to clients (such as why the burden of proof requirements will be deadly), prepares witness to understand the ins and outs of cross examination and enlists their side in

meeting the technical requirements of the evidence code for admissibility. To do this, the lawyer must be fluent in many dialects: those of the law, life, and the business of his client. This demands real literacy, and it is best served by wide reading-- plays, fiction and nonfiction, poems, whatever may be enjoyable. Every well written book teaches us something about our own legal writing. Think of “outside” reading as billable time. The Signal to Noise Ratio. In all communications, there is a signal to noise (STN) ratio: A high ratio is good. A low ratio, where the noise interferes with the signal, is bad. The STN ratio in many memoranda is very low. There are basically two kinds of noise: (1) filler and (2) rubbish. Filler is all well and fine and unremarkable, but it’s not needed. In a recent case involving many scores of motions, the same filler argument was made over and over again- the same cites, the same pages outlining the duty of the court to decide this or that, the same tired recitations of standards. Routine motions (such as demurrers, for summary judgment, perhaps to compel discovery) in law and motion departments usually do not need to spend page after page on the basic legal rules. Reading motions in limine that tell me that I should allow in admissible evidence and that I must weigh the prejudicial effect and probative value of evidence (and so on) is not helpful. (More on motions in limine specifically below.) The red flag on filler is this: Did you cut and paste it from another case? Could the text have been written for any case? Rubbish is worse. Rubbish is misleading, red herring stuff that avoids the issue, misquotes cases (including by selective quoting), and generally does not confront the issue up for decision. It is obvious why this is bad, but the problem often is that rubbish is mixed in with the rest, and it can be tough to see where one leaves off and the other goes on. Judges spend an enormous amount of time clearing out the debris, looking for the needle in the haystack, bypassing the filler as rapidly as possible, and trying to identify the rubbish and get it off the table. We are only human, and sometimes there just comes a point where the amount of filler and rubbish is too much, and just we put the papers down, rub our eyes, perhaps have a sip of coffee, and move on.

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With a low STN ratio, the judge is most unlikely to see your strongest argument, and with all the filler and rubbish taking up your page limits, you won’t have the time to address it. Low STN ratios are symptoms of the Sin of Excess. You may have seen other symptoms during pretrial work. The Sin of Excess is manifest when counsel make every possible (and impossible) claim in a complaint; when they insert every affirmative defense known to law, regardless of whether most of them are applicable or have the slightest factual basis; when discovery demands seeks every paper, and every email, and the responses include every possible objection (recall the Hamilton Burger approach: “incompetent, irrelevant, and immaterial”); when every memo uses up the entirety of the page limits; when every peremptory challenge is used (no matter what the rest of the jury panel looks like). Lawyers get away with the Sin of Excess because much pretrial work occurs outside the sight of a judge, and when the Sin is before the judge (such as in law and motion proceedings), the judge often has no time to address it, spending time instead on trying to discern and decide the merits. But many lawyers habituated to the Sin of Excess cannot make the transition to trial, and it infects, and undermines, their courtroom tactics. Endless cross examination loses the jury and obscures the key answer; endless objections are a soporific to the judge; introducing a thousand documents ensures no one will read the decisive ones; and so on. In the end it’s a matter of judgment, a beatific quality which cannot coexist with the Sin of Excess. Courtesy copies. If the judge has courtesy copy rules, or requirements on email copies or email communication, find out what those are. In my court, the budget cutbacks have, among many other things, made it virtually impossible for judges (or anyone else) to review up to date paper files. Thus the delivery of courtesy copies is always appreciated, and sometime required. Don’t you want to help the judge read your papers? Remember never to provide courtesy copies before the original has been filed and served. Ex parte orders. If possible, have the other side to sign off on the proposed order or be able to represent that the other does not oppose the motion. Have a line for the date of the order. State the date the hearing is set for.

Do not seek to have unsigned, undated papers “file stamped”.

Some attorneys believe that an attorney declaration is a convenient place to insert speculation, opinion, and gap filler for any holes that the evidence does not quite cover. This is actually not correct. A declaration is actually under oath, and should contain only assertions the declarant actually knows, first hand, to be true. Generally, aside from procedural matters, this means that attorney declarations which state the declarant knows the recited facts are actually perjurous. If the declaration recite hearsay, it is generally inadmissible. Don't waste your time, or risk indictment. The baseline starting point is this: attorney declarations are probably inadmissible (again, aside from procedural recitations). “An affidavit based on ‘information and belief’ is hearsay and must be disregarded.” Star Motor Imports, Inc. v. Superior Court, 88 Cal.App.3d 201, 204 (1979).

Other futile approaches:

• Arguing that the last motion (or evidentiary ruling) was decided in favor of the other side, now it is your turn.

• Throw it all on the wall and see what sticks. • Assuming the judge won’t read the cases anyway.

Pitching arguments. Sometimes we have broad discretion in a matter, sometimes we do not. These are profoundly different situations. If the court does not have discretion in matter, say so, provide the authority, and you’re done. When judges do have discretion, identify the constraints and factors that need to be weighed, but then keep your eye out for the practical result. When judges have leave to do it, they generally are looking for a fair, equitable, and practical result, in at least two contexts: practical (A) in the context of the case- what will be best for the lawyers and clients in terms of burden—and (B) in terms of the outside world –what sort of result makes sense were it to be generalized across many similar cases, i.e., the sort of precedent the decision creates. 3A In Limine Motions Here it’s helpful to start with the law. A recent case reminds us the true function of motions in limine: “A motion in limine is made to exclude evidence before it is offered at trial on the ground that the evidence is either

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irrelevant or subject to discretionary exclusion as unduly prejudicial. (Ulloa v. McMillin Real Estate & Mortgage, Inc. (2007) 149 Cal.App.4th 333, 337–338; Condon-Johnson & Associates, Inc. v. Sacramento Municipal Utility Dist. (2007) 149 Cal.App.4th 1384, 1392.)” Ceja v. Department of Transportation, __ Cal.App.4th__, 2011 WL 6307881 (No. F058568, C.A. 5th, November 21, 2011). See generally, Kelley v. New West Federal Savings, 49 Cal.App.4th 659 (1996), R & B Auto Center Inc. v. Farmers Group Inc., 140 Cal.App.4th 327, 371 (2006) (Rylaarsdam, Acting P.J., concurring) and Amtower v. Photon Dynamics, Inc., 158 Cal.App.4th 1582 (2008). There are some truly bad in limine motions out there. Many of them fit very neatly into the filler and rubbish categories. 1. Loopy thinking. Here’s the loop: the other side doesn’t have any evidence on issue X. So the motion asks for the exclusion of any evidence the other side has on issue X. Of course, if the other side does have any evidence, then getting this motion granted ensures a very fast trip to the Court of Appeal and right back down again for another trial. If they don’t have any evidence—well, we’ll see, right? 2. Magic: Turning 75 days into 24 hours. Summary judgment requires 75 days’ notice. Too long? No problem. Put your thoughts into a motion in limine: The other side doesn’t have the evidence (so you say), so get the judge to strike the claim (or defense). Boom, you win. But, as Richard Nixon said, “that would be wrong.” See cases cited above. 3. Always do the right thing. Always. This motion in limine wants me to rule correctly on all evidentiary issues. I hope I will. Without cluing me into the specific evidence the author has in mind (at argument, it often turns out the author has nothing in mind)(oops, did I phrase that correctly?), the motion seeks the exclusion of all ‘irrelevant’ or (better) ‘inadmissible’ evidence. Or it might ask that all hearsay, or unauthenticated documents, be excluded. But I ask myself, how have I made the world a better place by issuing such an august ruling?

4. No Surprises. No one likes trial by ambush (except when we’re the ambusher). Discovery was meant to remove the tingle of fear, shock and horror when the other side announces a new witness or document. Thus this motion seeks exclusion of anything not disclosed in discovery. Often the request is as vague as it sounds: no specific item is mentioned. (Some lawyers resent being called on this one: How can I possibly tell you what to exclude, they will say, when the whole point is that I don’t know what it is?) But some parties do discovery and some do not, and some do it poorly. I can’t budge until I see actual discovery abuse-- and that usually requires the identification of the evidence sought to be suppressed. Among other things, such as a showing that the discovery was sought, was promised (or a court ordered its production), and that the offending party had it at the time of the response. 4A. Surprises: Variation on a Theme.

A variant is a demand that no witness be permitted to testify differently from something she said in deposition; or the motion seeks a ruling that interrogatory responses are binding, and no testimony to the contrary will be permitted. Deep confusion reigns here. While responses to requests for admission are usually binding, other discovery responses are not. Here’s the thing: Some people lie. Or they make mistakes. Or forget. There’s even an instruction on this (CACI 107). Yes, experts are trickier (I don’t mean that negatively): depending on how carefully deposition questions were asked, experts might be barred from expanding on their opinions, but otherwise the principle remains the same: people, God bless ‘em, can impeach themselves. 5. No Surprises At All. The “no ambush motion” is often coupled with this one, or the point is raised at argument: Well, judge, if you won’t bar evidence because it wasn’t previously disclosed, at least compel the other side to make an offer of proof. On everything. Now, I could routinely grant such motions: We’d have a little pre-trial trial (well, one about as long as the trial itself)

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and then try the case. Fun. But that would have us abandon the very last delicious frisson of anxiety that every trial lawyer lives for. Not everything is previewed. 6. Mr. Obvious. There is a group of motions which asks for the obvious, and for the life of me I can’t figure out the motivation. Perhaps the moving party likes to increase his score—aha! I won seven [unopposed] motions! Or the level of trust between the sides has plummeted to a fascinating new low. (Judge, we want you to order opposing counsel to wear clothes.) I call these “of course” motions, and usually none is needed. They ask for punitive damages to be bifurcated from the liability portion of the trial; to exclude witnesses until they have testified; to bar mention of insurance; to bar the calling of opposing counsel as a witness (when there’s no reason to think they would); to exclude settlement discussions as evidence of liability. In the same category is the motion that seeks a bar on publishing items to the jury before they have been admitted or without the prior consent of the other side or the court. 7. Good Precedent & Bad Precedent Good precedent enables inductive reasoning from past authorities to suggest the answer in a new case. Bad precedent is cutting and pasting a new caption into the set of in limine motions used in your last three trials. Extremely bad precedent is doing a lousy job in the cut and paste and leaving in the name of the old client. These are more generally useless motions in limine:

• Bar evidence relating to dismissed claims (without identifying any);

• Bar pleas to sympathy of jury; • Offer of proof as to other side’s impeachment materials (!); • Bar suggestions that the jury may ignore the law; • If “necessary” use 402 hearing (i.e. outside the presence of the

jury), for unspecified purposes; • Disclose witnesses in advance;

• Exclude evidence of settlement negotiations; • Exclude evidence of liability insurance; • Exclude experts not previously disclosed; • Exclude golden rule argument; • In criminal cases,

o Exclude post arrest statements (where there aren’t any); o Exclude opinions on guilt or innocence; o Provide all Brady material – the prosecution is already

under the Constitutional obligation to provide this; o Provide all “exculpatory evidence”—this is same thing as

Brady material, but I suppose adding in as another motion makes for a more impressive package;

o Provide criminal records of the State’s witnesses—again, this is already required under Brady.

The point is not that the ruling sought in many of those motions is legal error; but only that the issues are understood, and do not require a court order. At most, these usually only need a brief consultation among lawyers to ensure there are no problems. Motions to exclude certain expert testimony may or may not be filler. As with most of the motions alluded to above it depends on whether there is really an issue, some identifiable evidence actually at stake. A motion to exclude all testimony not previously provided, made without further explanation, is pointless. But if the movant knows an expert is actually expected to provide certain testimony that the expert never alluded to in his deposition, and/or as to which there was no notice, the motion becomes that rare, gleaming thing: the genuine article, presenting an in limine matter that deserves resolution. Finally, a plea to have a peek at the local rules. Just a little peek. Here in San Francisco, in limine motions are due 5 to 10 days before trial. LRSF 6.1. I know, I know. The joke around here is that we need a rule to get lawyers to look at the rules. But complying with the rules shows you are serious, and gives the parties time to meet and confer—and to agree; so reducing the girth of those monstrous three-ring binders, fattened with motions.

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4. Jury Selection There are some lawyers who honestly use voir dire to ferret out those who might be biased against their cause. All lawyers spend at least some time on that, but many lawyers have ulterior motives, and spend considerable time seeking to condition the panel, set up arguments they will use in opening and closing, and so on. A little background might be helpful. Voir dire by lawyers is a creature of state statute, not a matter of constitutional right. In federal court, lawyers often do not engage in much voir dire: it is primary a matter for the judge. E.g., People v. Bittaker, 48 Cal.3d 1046, 1084 & n.21 (1989). But even for lawyers, the primary permissible reason for questions is to be able to raise cause challenges. True, they need information that helps them with preemptory challenges as well, but that doesn’t add much to the analysis. What is plainly objectionable are questions designed to educate the jurors about the case, set up the juror to commit himself to a position which can then be cited later in the trial, otherwise precondition the panel, or instruct them on the law (or suggest what the controlling law is). Most judges use this rule of thumb: If the question is designed to impart information, it is objectionable; if it solicits information, it may be permissible. The more it looks like you’re simply trying to ingratiate yourself with the panel and are simply using the opportunity to get a little face time, the more the judge is likely to sustain objections to your questions, interpose her own objections, and hold you strictly to any time allocations. And the contrary is true: If it looks like you’re honestly trying to see if someone has a bias, the judge is likely to afford additional time and overrule objections. There are some routine questions which are not useful: “Maybe this isn’t the best case for you?” This is addressed to someone the lawyer hopes to have bumped for cause. But no one cares what the answer is to this question, because it doesn’t matter if this is the “best” case for the panelist. Bluntly asking a panelist “so you can’t be fair, right?” is not likely to be effective unless you know the person is hunting for an excuse to leave. Pressing, leading questions like this often backfire, too, because people (generally) like to think of themselves as fair. Highly aggressive leading questions (if not caught by the judge) are very risky, sometimes leading to smoldering resentment and occasionally a rip-snorting counter attack from the panelist.

Two more tips. Consider discussing with your judge a pre-arranged signal to be employed when it’s obvious that you have a nut on the jury panel. Every now and then there is someone who is so vitriolic, unstable, angry, or bent on getting out of service that he or she will literally say anything. A very brief side bar can also save time in this circumstance. Finally, and perhaps most obviously, know what questions the judge plans to ask. Have a look at the Standards of Judicial Administration, 3.25(c), which most judges use. Don’t be shy in suggesting other useful questions, peculiar to your case, for the judge to use, and thereby perhaps save yourself some time. But I must say, it is depressing to get from counsel a re-typed list of the questions already set forth in the Standards of Judicial Administration…. alas, one more piece of paper destined to end its inglorious, useless life in the recycling bin. 5. Jury Verdict Forms In the software industry the phrase ‘spaghetti code’ is used to describe code (i.e. a series of instructions) which is impossible to follow: like mass of cooked spaghetti, it branches off in multiple undeterminable ways: one is unable to determine how the branches return to the main stream of instructions (or if they do), or how all the various possible data inputs and results are accounted for. The opposite, highly structured code, is easy to understand, has comments explaining each step, and plainly notes each input and every result and the links between the two. All software is (with more or less success) debugged before release, to ensure that what may appear to be logically structured instructions are so in fact. So should we proceed with special verdict forms. Avoid spaghetti code. Debug. The first set of special verdict forms proposed by lawyers are almost always spaghetti code, at least in cases with anything more than a few questions. The problem is that appellate courts seem to have no compunction in reversing when they can’t understand the verdict, or there are internal inconsistencies. They are really merciless in this way. At trial, crises are

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precipitated when the parties submit lengthy special verdict forms just before closing argument, and there is little or no time to sort the mess. So, parties should meet and confer on the form, then give it to a non-lawyer to determine whether the lay person can, following the instructions, possibly mess it up. This is debugging: tell the layperson to try to come up with answers which, when coupled with the instructions on the form, lead to inconsistent numbers or results, cause the form not to be completed properly, and the like. Assume the jury will, if it can, fill out the form perversely: If there are two causes of action based on fraud, assume they will find differently on each one. If they are asked to compute damages for two claims which are based on the same evidence, assume they will generate different numbers. If they are asked for damages on various claims and then somewhere else there is a line for total damages, do not assume the total will equal the sum of the other lines. If there is a scenario under which damages claims overlap, assume the jury will make the findings which lead to the greatest difficulty in understanding what damages were awarded for. Think: if one or more claims are reversed on appeal, will the verdict form be sufficiently specific and clear that we will be able to tell which damages survive? (That’s good.) Or will we have to retry the case? (That is bad.) Another trap. If you take my advice in having a special verdict form substantially in advance, you may need to change it as claims are dropped (or added) at trial, or for other reasons. The very carefully tweaked instructions (“If you answered “YES’ to Question 89, then answer Question 92. If you answered “NO” to Question 89 then answer Question 90”) will have to be very, very carefully revisited to ensure the instructions still lead the jury to the correct next steps. 6. Juries Bridging the Gulf. There are so many audiences at trial. The judge, the jury, opposing counsel, witnesses, the client. The Court of Appeal, which will read the stone cold record. Perhaps one’s malpractice carrier. The easiest thing is to slip back into the legal persona used in the pre-trial proceedings, which as I suggested above is likely to lead to the Sin of Excess.

But there’s a further point in this context: In pre-trial proceedings, the lawyer has essentially been engaged in a highly literate pursuit (successfully or not): she has been writing in the peculiar way lawyers and judges do, invoking the artificial rules of the law to win motions, gain or refuse discovery, all with an emphasis on careful parsing and at least an effort towards literate, logical reasoning. The jury audience is not part of that artificial legal world. Every lawyer who has ever tried to explain the legal facts of life to a headstrong client knows the frustration of walking through the seemingly arbitrary details and procedures, knows that legal results do not mesh with a client’s sense of equity and fairness—in short, knows the sometime great gulf between the legal world and peoples’ daily concerns. And despite the best efforts of judges as they instruct, the roadmap provided by well-crafted special verdict forms, and the sometime methodical progress of a trial, juries do not always take a logical or literate approach to the case. Think of the jury as, sometimes, post-literate. Depending on age and education (and, doubtless, many other factors), some jurors reason associatively, rather than logically; they think in and rely on images and graphics, they are unable to attend to long documents, and will not follow argument with a long series of predicates. (By associative reasoning I mean the sort of processing that a search engine, such as Google, might undertake: the agglutination of a variety of facts that appear in some way to be related, although not all necessarily related in the same sort of way. The result can be an undifferentiated mass of evidence which weighs evidence in highly unpredictable ways.) As a consequence, techniques that worked perfectly well before a judge at summary judgment or other hearings may fail with a jury. It seems obvious once said, but I have seen many lawyers just rely on a mass of dry documents, spend time reading out difficult portions of contracts, and so on, oblivious to the jury’s ability to imbibe the information. The other difficult transition is to let go the Sin of Excess to concentrate on the One (or perhaps Few) Important Things. As I have implied, judges are familiar with the Sin, and are used to parting wheat from the chaff; but jurors are not. Beginning with a confusion about the legal system as a whole, unfamiliar with the rules, and knowing nothing about the case, they will be lost very quickly if the lawyer does not immediately generate a very high STN ratio. The lawyer who has enjoyed making every claim, defense,

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and objection must concentrate at trial on the One Ring. The One Story. The Key Document. Without this, focus is lost, and the verdict is as likely to be the result of random factors as your efforts. There is another transition lawyers need to make from pretrial to trial, and that is to set aside the overt manifestation of pretrial hostilities. You may have survived three years of brutal antagonism, monstrous depositions set on your child’s birthday, demands for TROs while you were in the hospital, threats delivered to your veranda chair during a Tahiti vacation, and scores of absurd discovery motions accusing you of midnight document shredding parties. Put it aside. The jury reads you like a book. Carrying over the antagonism of the pretrial phase, or any suggestion of a self-righteousness, condescending manner—will kill you in front of the jury. (Judges won’t like it either.) Talking in front of jurors. Never talk to anyone while the jury is still around at e.g. breaks. You should not speak to co-counsel, clients, or witnesses. Jurors can hear from remarkable distances, and their ear are magically tuned to your sotto voce voice. They can read your lips from a hundred yards. Seriously, jurors will do anything to overhear gossip and get more information about the case, lingering by the water cooler, pretending to go through their purses, re-arranging their papers, and engaging the clerk in a discussion about parking. Don’t be fooled. They are actually listening to everything you, your clients, and the witnesses are whispering. Do not review exhibits which are yet to be admitted, have your laptop open, or go over videos or PowerPoint’s you intend to use. The jurors will see it, and the ensuing conflagration may result in a mistrial. And if it does, you, conceivably, might be on the hook for the expenses of the other side incurred in the original trial. While on the subject of communication, make no expression while the other side argues. Sometimes the only reason the jury sits up and pays attention is when you start to shake and tremble, or look imploringly and disbelievingly at the judge. Treating juries well It is remarkable how often lawyers forget that everything they do ultimately is designed to influence the jury. Frequently, lawyers ask questions about

document which the jury cannot see; indeed, in many cases jurors have not actually seen the key document until the evidence arrived in the jury room during deliberations. One contrary case stands out in my mind, in which every sentence of every document on which witnesses were questioned was flashed up in large highly readable font on a screen, allowing the jurors an easy way to follow. The case resulted in a very large verdict for that lawyer. But in other cases, jurors have no idea what the testimony means, because they simply cannot follow without the text in front of them. If you do not use a screen, consider copies for the jurors, or a blow up of the key text. For similar reasons, jurors always benefit from organizing items. These might be timelines, charts, org charts, technical terms and definitions, and other graphical exhibits. Jurors notebooks are recommended by a host of trial guides, but I must confess I have never seen one used in my court (other than the usual blank notebook for notes that we give out at every trial). A good notebook might have tabs for notes on different defendants, photos of witnesses with their names, resumes of experts, and room for other exhibits or portions of exhibits as they are admitted. Stay out of the jurors’ personal space. Do not get close to the bar or other line used to mark the jury box. Aside from voir dire and during argument, don’t talk to them. Do not ask them how they are, if they are comfortable, whether they can see an exhibit, or other transparent excuse to ingratiate yourself. Gratuitous communication with the jury is bad form, violates the law, and they usually know exactly what you’re trying to do. Lookin’ good. Talk to local counsel about this. Cowboy boots and leather jackets are fine in some places, and not in others. Think about it: how much gold showing is really right? But ‘looking good’ has other aspects: a carefully arranged counsel table sends a very different message than a table with scattered overlapping papers. Make neat piles. Counsel who finds what he or she is looking for right away not only saves time, but is favorably contrasted with the lawyer who is constantly fumbling, apologizing for not being able to locate something, and otherwise apparently out of control. When I handled criminal assignments, I routinely came across lawyers at arraignments and motions who, frankly, looked like hell; I suppose judges might be expected to stomach that, but these same lawyers would then walk into a jury trial the same state of disarray.

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Associative reasoning (described above) generates this inference: slobby lawyer means slobby case. Words & terminology. The jury has no idea of what you’re talking about. If there are more than two parties – there’s trouble. If there are a variety of key people or companies involved in a case, the jury will be lost without help. Any use of acronyms will spell trouble—and explaining them once is not enough. All legal terminology is problematic—and that covers most of the words lawyers like to use in court, such as plaintiff, defendant, pro per, submitted, filed, lodged, admissible, sustained, overruled, cross-examination (well, they might know that one), opening, rebuttal, caption, pleading, interrogatory, deposition, voir dire, statute of limitations, authenticate, cause of action, estoppel, verify, privilege, and on and on. Some preliminary jury instructions address a few of these words; nothing prevents counsel from suggesting other introductory instructions, including substantive instructions such as on the key types of claims—the definition of negligence, fraud, the elements for a contract claim, and so on. The use of good graphics, and notebook reference materials discussed above, will help too. Above all, speak plain English. Forswear the ad damnum erstwhile ex parte hereinafters. Don’t read to the Jury. Sometimes depositions have to be read to the jury, and there’s no getting around it. These are miserable, miserable times, and make judges and juries grumpy. If you try to spice it up, the judge sustains objections; if you unobjectionably drone on, the jury starts thinking about lunch. But aside from these depositions, there’s usually no reason to read to the jury. No judge likes pages of documents read into the record—just admit the document, highlight the key sections, and project those graphically or hand the damn thing out. Do not do as I did in my first trial, a federal prosecutor a few months out of law school on rather wobbly legs, who read the opening statement to the jury almost word for word from note cards. The judge (a former United States Attorney who, I see now, had infinite pity on me), stopped the trial, took me to the private hall outside his chambers, and told me never, ever, ever, to read an opening or closing to the jury again. I recall nothing else about the case. Yet here I am, decades later, seeing young lawyers reading their openings and closing to the jury. They think that using PowerPoint makes it all alright; it’s not really reading. Tip (and more on this later): Using PowerPoint makes it worse.

7. Witnesses Interpreters. My Cantonese is lousy (I can ask for change on a bus, and that’s about it) but I’ve heard enough to remove an interpreter from a case. It was obvious she was not actually translating, but providing context and perhaps some guidance as well. (“Yes” is one word in Cantonese, not ten sentences.). Being very helpful, I am sure. Be sure your interpreters understand the legal context and the demands of the job, that they are experienced in the question and answer format, and know how to interrupt a witness who going on too long with a response. Some interpreters take notes as the witness speaks, but after a while during a long response will evade even this protection, essentially losing evidence. Have your interpreters be on time: we can’t start without them. Here’s an exercise we’re taught at new judges’ orientation to appreciate the burden on interpreters: have a friend speak, and just repeat what the friend is saying as she is talking, in the same language (English in fine). Don’t try to translate: just repeat simultaneously as she speaks. See if you can get past about one minute. Try this a few times and you will thenceforth keep your questions short and instruct your witness to do so as well. Court reporters and witnesses. A trial is not a dinner party. Ensure you and your witnesses do not talk over or interrupt each other. A well trained reporter will, given a choice among talking down what the witness, judge and lawyer are saying, choose the judge’s words. Not yours. Don’t try to compete with the judge. If you’re interested in an accurate record, work with your witnesses to ensure a smooth question and answer format, which usually means taking a beat between question and answer. Enunciate clearly, speak slowly. Tell your witness to do the same, especially if you have someone who is excitable. If you turn away from the court reporter, speak much more loudly. If you or a witness has the common nervous tick of making meaningless encouraging noises while the other person is speaking (“hmm…yes, yes, un huh, uh huh”), consciously stop it. Once again: Don’t talk so fast. Again. Slow. Down. Please.

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Ensure your witnesses know about things not to mention, e.g., rulings from in limine motions. Help them out, too, with the format of your question: “Now, without telling me what Ms. Finkelstein may have said, did you talk to her on Monday?” 7A. Questions and Answers Occasionally a lawyer tries to control answer by interrupting: perhaps by saying something or using body language such as a raised hand. Please don’t. Ask help from the judge if you want to get the witness to just answer questions directly. Your questions, too, might be part of the problem, in inviting a meandering, narrative response. (“And then what happened?” “Why is that?”) Some lawyers take it upon themselves to tell the witness that the question calls for a yes or no answer; different judges have very different reactions to this, and it may depend on the extent to which the witnesses appears to have been evasive. Some judges really do prefer that the lawyers ask the court for assistance and not presume to instruct the witness. Certainly, telling witness to answer “yes or no” in an angry and impatient way probably won’t work: The judge may contradict you and tell the witness he can explain his answer; and your tone, rather than provide a firm, no nonsense appearance may backfire and make you look like an angry, impatient, impotent wasp. Juries may ask questions in many courtrooms in California. Figure this out with your judge in advance. The judge will usually confer at sidebar with the lawyers on written questions submitted by the jury, and will generally ask the ones that appear unobjectionable. Some judges simply show the questions to the lawyers and let the lawyers ask those questions which they desire. If the judge asks the questions, she will almost always then allow the parties reasonable (ahem: this means brief) follow up questions. Do not call your client (or any witness) by the first name unless the person is under about 15 yrs. old. Many lawyers, especially in criminal cases, do this with their clients in a pointless attempt to ingratiate the client with the jury “Bobby,” she asks her 45 year old client, “tell the jury how you and your mom used to make pecan pies.” This is irritating. Some lawyers refer to co-counsel, or opposing counsel, by their first names. This is simply not formal enough for a courtroom. Save it for chambers where you can spread

a nice warm glow of collegiality, and show the judge that the lawyers are all really best friends despite appearances to the contrary, such as blood on the courtroom floor. Bad questions. Here is a miscellany of bad questions. While most of these are ultimately harmless, they confuse the issues and are a waste of time “Is it possible that….” Unless the matter is a logical impossibility (is it possible that 2+2=8?) or a factual impossibility (is it possible you saw a unicorn?) the answer to this question is always “yes.” Anything is possible. Accordingly the question is pointless. There is an exception here, which is that the question posed to experts often may be reasonable, although it continues to be potentially misleading. With experts, the question is often shorthand for a switch in assumed facts, but in an entirely undefined way. So, for example, if an expert testifies that, with a given set of circumstances, a roof would never catch fire, or a hip joint would not break, or an air bag would not deploy, etc., cross examination might ask, whether it was “possible” that the event might occur. A yes or no answer, alone, will usually not be helpful, so the newly assumed facts will have to be fleshed out at some point. “Didn’t you testify that…”. This is often a squabble about wording. I assume the jury has been paying attention, and testimony on what a witness has testified about poses the risk of a dangerous infinite regress. Find another way to impeach. The issue is very different, of course, when the former testimony is from a different proceeding, not before this jury, and counsel is setting up impeachment with inconsistent past testimony. Any question longer than 15 words. “You heard witness X say… (or, “Assume witness X said….)… are you calling X a liar?” This is either rhetorical flourish, argument to the jury, calls for speculation; or all of the above. “Would you be surprised to know…..” or “Would it surprise you to learn that …” Nobody cares if the witness is surprizable or not. The question

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obviously is designed to get a fact in front of the jury whose source is the lawyer, not the witness. “Is it fair to say that…” What would it mean if the answer were yes? Or no? Fair to whom, exactly? It might be “fair” to say that the car ran the red light, but not true. The question is just a cheap way to get the witness to agree with the phraseology of the examiner’s question when the questioner is afraid that if he straightforwardly asked the corresponding leading question (“The car ran the red light, didn’t it?”), the witness would refuse to go along. Some lawyers on cross examination must always ask leading questions, no matter what the cost in coherence. Here’s my favorite: The multiple double negative. “You did not tell the officer you hadn’t been drinking?”

“No.” No what?

While we’re on the subject of cross examination, common wisdom bears repeating: good cross is a stiletto. The best lawyers know exactly what they want. They ask a few questions, and sit down. The worst lawyers treat cross as a deposition, exploring this avenue and then the next, hoping, it seems, to find a little nugget which might be useful. This is not only a waste of time, but three classic dangers loom: (i) Loss of focus (no one may notice the nugget, lost as it is in a miasma of tedium), (ii) an answer you don’t want, and (iii) opening up the scope of re-direct to a thousand new subjects. This deposition style cross examination often steps laboriously through the entirety of direct, too, which is no favor to anyone other than your opposing counsel, who agrees with you those were pretty good subjects to have the jury learn about again. Tedious, pointless cross examination may sometimes be a function of the fact that the lawyer has been unable to leave behind the Sin of Excess, indulged in during pretrial proceedings. Lawyers spend a lot more time in depositions and wide open discovery than they do in trial, and in effect become trained to the approach of meandering down every country trail and peripheral path. Concomitantly, one sees much less of this in criminal cases, where there is little pretrial discovery and generally a sharper focus on the merits at trial.

8. Evidence We have all experienced that sudden sinking feeling when we know something is wrong, but we just can’t put our finger on it. It’s at the tip of the tongue. So at trial as evidence comes in that you know is objectionable—but you can’t quite say why. And you have literally a second or so to blurt something out. I suppose that’s how Hamilton Burger felt as Perry Mason did his magic in the courtroom, and why Burger always said the same thing, with that classic look of outrage on his face (i.e., judge, I really mean it this time): “incompetent, irrelevant, and immaterial.” Multiple bases for objection are sometimes right, but not often, and they make it more difficult for the judge–who too is moving at light speed now—to evaluate the real evidentiary problem. In one trial, the lawyer objected to a question on eight different bases. I paused, and asked her to pick two. The underlying problem here is the lack of familiarity with the evidence code; many lawyers just are no good at rapidly analyzing the issue posed by a question. The confuse issues of reliability with hearsay (which in state court, unlike federal court, are usually unrelated concepts), don’t know how to have documents admitted, and tend to make objections every time evidence is presented they don’t like, perhaps in the futile hope that every now and then the judge will feel sorry (or just make a mistake) and sustain a meritless objection. Many times I have seen counsel object that a question is leading -- when the question is addressed to their client on cross-examination, and on hearsay grounds when the statement is obviously that of the party opponent. There is no substitute for a very good grounding in the evidence code. The judge is under no obligation to rule on objections you didn’t make, and it is highly unlikely you’ll be able to appeal on the basis of inadmissible evidence if you didn’t make the right objection at the time. Experts. The classic problem with experts at trial is the extent to which their testimony is admissible, given the earlier expert disclosures and depositions. Specifically, the issue is whether their trial testimony is congruent with (1) their actual expertise (2) what you need for your case, (3) the expert disclosure, and (4) what they testified to in deposition. Any mis-match among these categories, and the expert may not be allowed to

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testify. If the witness is to testify on a pilot’s standard of care during night landings in bad weather, she needs the expertise on the subject, it has to be helpful to your case, her expected testimony should have been outlined in the formal disclosure, and she should have expressed her opinion at deposition. Thus, both the proponent and the opposing party must be able to fluently and rapidly move among all these categories to demonstrate congruity or its lack as objections are made during trial. What doesn’t work is the unadorned objection that the testimony is beyond the scope of the deposition. What do you expect the judge to do? Read the whole deposition to see if the issue came up? Lawyers need a fast way to map out the deposition for the court and demonstrate that the opinion was never provided. But remember the Magic Question. The fact that an opinion was never provided in deposition may simply be because the right question was never asked. The judge must see that last Magic Question, which is in effect whether the expert plans on giving any opinions at trial not expressed in the deposition. Depositions. At least when used as evidence in a case-in-chief, reading deposition is a deeply unfortunate use of time at trial. But it’s usually unavoidable. There are a few things that make the process less painful, and less susceptible to interruption by the other side or the judge. Advance preparation is needed to get designations, counter designations, counter-counter-designations (etc.) in front of the judge in time to allow the judge to rule before the time of the depositions. Usually, the judge won’t have time during the trial to do this (he’s presumably attentively listening to you and your witnesses), so work in advance of jury selection is usually needed. If a video deposition is to be used, the preparation must be sufficiently far in advance to allow the steps just outlined plus allowing time to edit the video. To rule on objections, the judge usually needs the context, and, when the counter-designation is based on the principle of completeness, the judge definitely needs to understand the context. Thus, a good way to get the objections before the court is to use a single paper version of the transcript, with designation and objection in different colors for different parties. Objections can noted in the margin or if absolutely necessary just marked on the transcript and explained (please: very briefly!) in a separate document.

Whether for impeachment or not, depositions should be read in haec verba omitting objections and colloquy (unless the colloquy is needed to understand the answer). In haec verba really does mean just those words in the transcript. It does not mean explanatory or parenthetical comments by the reader. To have a good record, say “Question” and “Answer” to introduce those components of the deposition. Especially with video-taped depositions, have copies of a transcript (with only the words to be uttered on the video) available for the jury to follow along. As you are about to call a witness with whom you expect to use a deposition, tell the clerk. The clerk can retrieve the transcripts from what may be a five foot tall stack and ensure the judge has them ready to go. Documents and exhibits

“…no jury …is going to seriously examine more than 75-100 documents” Judge J. Anderson, “A Judge’s Lament Over The Demise of the Civil Jury Trial,” 26 Defense Comment 12, 17 (Fall 2011).

My goodness we do love our paper. Think of all that time and money spent getting it and reviewing it and thinking about it. It would be a crying shame to waste it. Actually, it would be a crying shame to use it, because you’ll lose the jury. In the typical 5-8 day trial, I suggest 25 key documents is about right; anything else is lost in the miasma. I am exaggerating for emphasis; but not much. Consider summaries and compilations. It is common to see cases in which the parties have agreed to the admissibility of large quantities of documents, and then never mentioned most of them again including in closing argument. What were they thinking? Aside from some papers essential to meet some element of the claim (the lease in an unlawful detainer), do what you can to keep the volume down, including by having an early exchange with the other side and deleting duplicate exhibits. If you don’t like using exhibits marked as that of the other side, devise a single neutral numbering system. In fact consider adopting a neutral numbering system from the inception of the litigation. Each document would have its own number from first

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production, through deposition, to trial. It is mighty irritating to have to interrupt examination to make it clear that exhibit 34 to the Watson declaration, while it is also exhibit B to the Holmes deposition, is actually exhibit 14 in this trial. If you don’t make these efforts to cull your exhibits the court may do it for you, with perhaps less sensitivity than you might wish. I still recall a securities case from long ago in Santa Clara. The judge asked at pretrial conference how many exhibits one of the parties had. “250,000, your honor.” The judge paused, and said, “No, you don’t.” Some folks have a very tough time getting documents admitted. They don’t know the rules on authenticity, and can’t keep straight the elements for business records. My favorite (wrong) ground for admission was this argument: “it’s from the Internet.” In fairness, there is considerable confusion on the authentication of web pages and other web based content; so don’t leave it to the moment of requested admission at trial to consider how you will have this material in evidence. Walk yourself through the foundation in the privacy of your office. You are out of order. There are a few basic steps in using documents. These are painfully obvious, but it is far more painful when the steps are not observed. In the heat of battle (perhaps a better metaphor: the fog of war), lawyers sometimes take out an exhibit and show it to the jury; then turn to the witness and ask, “is this the photograph of the intersection where the accident took place?” Later, if I have not arrested this misbegotten sequence, they deign to ask me to have the item admitted (or they forget). Here, of course, are the steps:

1. Mark the exhibit, if it has not pre-marked. Even if it has been pre-marked, provide for the record and the clerk (1) the number and (2) a very brief description of the item.

2. Provide copies to all parties and the court 3. Show the exhibit to the witness, but do not let the jury see it 4. Lay the foundation for admissibility if not done before 5. Ask that the exhibit be admitted 6. Then if you wish show it to the jury, or publish it, or distribute

copies to the jury (first asking permissions from the court).

There certainly are times where no one minds if an exhibit is shown to the jury before formal admission, but clear the procedure with opposing counsel or the court first. Many new lawyers ask me at the end of trial, just before closing, and after they have rested, which exhibits were admitted. (Long pause here.) Really? You didn’t track that? There have been a few times when I have very, very gently told them that they didn’t actually ask to have any exhibits admitted. Ah. (Pause.) Well. But far be it from me to claim moral superiority here. Failing to admit any documents is exactly what I did in my first hearing out of law school. The judge was without mercy, and I lost the hearing as a result of my mistake. Never again did I have a hearing without a paper table where I noted exhibits marked and admitted. But I don’t see most lawyers using any such aid. Tip: use one. A note on copies. You must have copies for the other parties and the judge. And no, they cannot be different versions than the original. “Pretty much the same” is not a copy. A black and white image of a color original is not good enough. The one key caveat is this: the original exhibit must be distinguished as such from the copies; this is an issue when the original, with colored exhibit sticker in place, is photocopied to make the copies. Then the original and copies really may be identical, and confusion erupts, including the possibility that a party’s copy, with counsel’s notes on page 2, ends up in the jury deliberation room. Copies should be marked “copy” or some such to avoid the embarrassing problem. The witness never looks at a copy; but only testifies from the original exhibit. An old friend of mine keeps his copies in specially colored binder (e.g. red), and hands out copies in a different color binder (black). All are identically tabbed and indexed. Keep all exhibits in one place once admitted or used. Usually the courtroom has a basket or other location for admitted and/or mentioned (i.e. “to be admitted” or identified) exhibits. Use it. Otherwise they will disappear, other parties will not know where the items are, and witness will take them home. It happened.

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9. Equipment and Technology Ain’t technology grand. Courtroom technology is the subject of at least one seminar in every bar conference, always good for a few questions every time a judge is interviewed, and a routine source of friction at trial. Here’s the basic rule: Technology is great if lawyers know what they’re doing; and a distraction and waste of time if they don’t. They often don’t. In a criminal case last year, a lawyer took 20 minutes (with a recess thrown in for good measure) to get an audio CD to play in the CD player. It seemed such a simple thing that I and the lawyer thought the damn thing would fire up any second now; so we all waited. And waited. Nothing was broken. It was just … one of those things. The jury sat there, face planted in hands. Two jurors in their post-trial questionnaire mentioned only the CD player problem; everything else had faded away. What irony. Lawyers use technology based on computer data in order to address among other things the problems of the post-literate jury, folks with low attention span to whom a letter of 250 words is best understood as ten 140-character tweets. But technology failures in court slow everything down, break concentration and lose the audience. What is ‘technology’ in this context? Anything but your voice and original documents. Once we venture past those elementals, our control over the universe becomes suspect, and that’s the point: Murphy’s law really rules here. Technology includes the use of an Elmo, video depositions, animations and simulations, computer display of documents, annotations with light pens on video displayed documents. It includes pencils (they will break), pens (they will run dry), extension cords (you will forget to bring it), audio recordings (the speakers will not work), video depositions (outside light will wash out the image), and blown up exhibits on foam core boards (you will forget the easel and will try to hold up the 2’ x 4’ boards as you are asking questions and looking for your notes. This will not work.). Judges Alsup and Breyer of the North District of California have this in their trial guidelines; “For electronic equipment, either know how to fix it or have a technician handy. For overhead projectors, have a spare bulb.” You just know there was a trial where a burned out bulb caused an irritating delay. And we have all had trials in which a lawyer has stared dumbly at some machine and muttered very softly (but we all heard), “I don’t know how to run this ***** thing.”

So, a few tips:

• Bring in everything you need- thumbtacks, projector, screen, easels, pens, marker pens, extension cables, white-out. Assume the courtroom is bare. And in this time of budget cutbacks and reductions in court staff, when judges sometimes buy their own sticky notes and paper pads, the bare courtroom is really not a metaphor. Don’t even assume the courtroom has a table for your video projector. You’re lucky we have chairs.

• Set aside time to meet with the courtroom clerk to discuss setting up equipment. Consult with the clerk before you start moving furniture or set up equipment. The clerk knows about lines of sight, fire exits, and other requirements.

• Practice the presentation with exactly the same equipment and data sources, with the exactly the same personnel, as you expect to use at trial. You must practice with exactly the same software you plan on using at trial- versions may not behave the same way (this is true, by the way, of PowerPoint), or may be incompatible with files made by another version.

• Your office is not the courtroom, The fact that you can hear those tinny laptop speakers doesn’t mean folks in a large courtroom with atrocious acoustics will. Internet connectivity in your office doesn’t mean you will have it in the courtroom. Don’t count on the lights being turned down in the courtroom in order to see your slide show.

• Because Mr. Murphy will do what he can to sabotage high technology, bring low tech backups, such as paper and foam core versions of items to be projected. Be prepared give your closing, scheduled as a multimedia shock and awe son et lumiere presentation on five screens, with only paper notes.

• High tech has an embracing, insidious power: it can distract you and the jury, and over reliance on it will reduce your flexibility to adapt to swiftly changing circumstances. It is simpler to adapt to court ruling on depositions with paper versions than with video versions; it is easier to modify one’s opening when relying on notes than with a PowerPoint; it is simpler to redact a paper exhibit than the PDF form to be projected on a screen.

• Talk to the other lawyers about sharing equipment. This reduces costs and, more importantly from the judge’s point of view,

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reduces clutter and the interminable delays as one array of equipment is set up and another moved away as the lawyers change places.

• As Judge Alsup suggests elsewhere in his rules, bring tape to fix wires and cables.

• Check out the courtroom in advance for the best location of projections, screens, displays, easels, and the rest. Think about lines of sight: Will the judge, jury, and opposing counsel be able to see? Have you interfered with free access by those in wheelchairs or who might use crutches?

• If you have colorblind jurors, will they be able to discern your color schemes on exhibits? I had a case with a blind juror (with an assistant whispering in his ear what was being shown)- we made sure the witnesses read aloud the exhibits and so on, but some of the demonstrative exhibits were, of course useless. Good thing none was critical.

• Your projectors should probably have a “hot button” cut off mechanism, i.e. a way to instantly turn off the projection. Lawyers routinely project the wrong file, document or image on the screen (they mistook wrtk458.jpg for wrtk468.jpg). Even if your actions were inadvertent, the judge could declare a mistrial, and if the judge concludes you should have been able to stop the unauthorized view, may assign fees and costs of the other side in the first trial to you.

• To avoid the issue above, ensure that other counsel and the judge sees every image before the jury does. This is obvious from the painfully enumerated steps set out above under Document & Exhibits, but courtroom technology used to project images is more likely to surprise you and more so likely to cause problems.

• Advance disclosure of exhibits to the other side is the best way to handle most of the issues outlined here. Make sure they have good copies to review- i.e., copies that conform to the rules for copies set forth above, including providing color copies of color originals.

• Advance disclosure is essential for simulations, in which computer program with programmed assumptions purport to recreate certain conditions. More on simulations and animations later, but here I just note that it can take many weeks for the other side to review a simulation and its underlying code and assumptions, and the other side may call for disclosure of the source code in order to understand and test the assumptions built into the program.

(Presumably the advance disclosures took place in connection with expert discovery.)

• Great high tech essentially vanishes: the message shines through and the processing of the message goes unnoticed. Lousy high tech is obvious, and gets in the way of the message. Lousy, ostentatious high tech will seem like overkill, and the jurors (perhaps at the suggestion of opposing counsel) may wonder where you or your client got all that money to put on the production—and what you are trying to distract them from.

10A. Demonstrative Evidence Demonstrative Evidence-isn’t. Evidence is that stuff which gets admitted and goes to the jury room during deliberations. There are exceptions: weapons obviously, and computerized data (such as on a DVD or CD) probably won’t go to the jury room, with the judge making arrangements for the material to be viewed on the jury’s request. But, usually, maps, charts, and witnesses’ drawing used to show the location of the accident, plastic knees and skeletons used to describe the way the body works, and other demonstrative items are not admitted and so never go to the jury room. These are used to explain and illustrate the evidence; they are themselves evidence. The line between (real) evidence and demonstrative items (let’s not say ‘evidence,’ just to avoid ambiguity) can be murky, especially because evidence morphs into demonstrative items and vice-versa during trial, while no one is looking or paying attention (more on this in a minute). Here are the three red flags signaling that you are dealing with demonstrative items, not admissible evidence: the item (1) did not exist at time of litigated facts, (2) is not a summary of other documents and/or (3) was created especially for or during trial. Unless the thing is a piece of history, as it were, an artifact from the time of the facts giving rise to the dispute, it may be simply a demonstrative item. (True, I am exaggerating here to make a point. Demonstrative items such as maps drawn by the witness are sometimes actually admitted, and it may be splitting hairs when the jury, after all, does see both evidence and demonstrative items. But I must spilt these hairs to warn against the confusion I note next.)

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Here’s the problem: at the misguided behest of the examining attorney, witnesses take evidence and do something to the evidence in court—and thereby transmute it into a demonstrative item. This happens all the time with photographs: the witness takes the photo and writes all over it: lines, arrows, circles, and squiggles, P1 for where she was at first, P2 where she was later, P3 after that, D1, D2, and D3 to show the other guy, red and blue and green ink to indicate different vectors or people or cars, and other stuff no one remembers five minutes later. (Even better: the lawyer—who plainly hasn’t thought about this for more than two seconds in advance—has the witness use little yellow sticky note papers to mark all the various positions and items. Within twenty four hours, all is lost.) Even worse: different lawyers have the same witness, or have different witnesses, make different series of marks on the same item. Do not bet on the judge stopping this chaos. If she is merciful and sees jurors in desperation trying to figure it out, she might. But there is another school of judicial philosophy sometimes devoutly urged by counsel, called “let the lawyers try their own case,” a/k/a/ let ‘em stew in their own juice. Now, some of these marked up exhibits positively glow, and put American Abstract Expressionism to shame. But it kills the piece of evidence- it turns it into a demonstrative item. Think of it this way- enhanced evidence becomes demonstrative. True, few lawyers will object to the introduction of the enhanced exhibit if they had no issue with the original exhibit, but the better practice is to have a separate copy with its own exhibit number. Don’t mark up the original at all. Think of it from the point of the view of the appellate court: some poor clerk or judge glances at the modified item but may not be able to figure out what was added at trial (and may not be in the mood to carefully parse scattered pages of transcript, trying to find direct, cross and maybe re-direct to get it all straight). 352 Issues. In California state courts, lawyers and judges use Evidence Code section 352 to think through the prejudicial impact of evidence which is otherwise admissible, or evidence which will take an undue amount of time to present. Other jurisdictions have similar provisions. As long as the judge is pretty clearly weighing the factors for and against admission (and isn’t arbitrary), the judge is very unlikely to be reversed on appeal. Under 352 the court has the discretionary power to reject what is by definition otherwise admissible. Think about that for a minute. To quote the venerable legal adage, this is huge. If the judge thinks the poster board,

video clip, ten million dollar simulation, or other item is unduly prejudicial, then it’s out. The jury will never see it. The same thing for evidence which just takes too long to present, or for which the foundation is too complicated and time consuming to present. Let’s take ‘time consuming’ first. As we’ll see with animations and simulations just below, there may be several layers of admissibility which underlying data have to hurdle before the final product can be admitted. Compilations and compendia may presume the admissibility of underlying documents. Vast swathes of expert testimony in different areas may be needed before the judge is comfortable admitting a supposed recreation of, e.g., an accident. So: see if you can get stipulations—make a deal: the judge can see yours if he can see mine. Use requests for admission to obviate issues on the admissibility of documents. Have pre-trial hearings on the admissibility of key items. Issues of undue prejudice can arise in many ways. To be sure, the usual problem is the grisly photograph, specifics from autopsy reports, and so on. But the manner of presentation of otherwise innocuous data itself can generate problems. Just as forensic graphical consultants have ideas on color schemes and other circumstances designed to heighten the impact of an exhibit, the other side will desire to block the use of those supposed mind altering effects. Words and pictures can be taken out of context. A word or phrase may be highlighted or emphasized, and in a case where, for example, the obviousness of a word or phrase is the issue, that will doubtless generate loud protestations. Timelines are easily manipulated, subtly suggesting that events were closely linked, or not linked, or occurred at about the same time (or not). A form of prejudice arises, too, when the witness does not provide a foundation for every aspect of the item. For example, Google photographs are now ubiquitous: it costs virtually nothing to have a photograph of an intersection or other location, and witnesses routinely seem to authenticate them. The witnesses cannot, of course, authenticate all of it: usually the perspective is not one the witnesses ever had. But even in this day of Photoshop, photographs are very powerful: no juror will doubt their accuracy. Of course the trees are there, the lines on the road, and the perspective showing the oncoming traffic. This may or may not be a problem: if an issue at trial is whether something was visible from e.g., the driver’s seat, the problem may be fatal.

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Undue prejudice with exhibits comes in many ways. (Many of these apply to animations and simulations as well, discussed in more detail in the next section.) The exhibit may:

• Show perspective or a field of view no witness had or could have had. For reasons discussed below, this will not be a problem with simulations, but it may be a serious issue with demonstrative exhibits;

• Speed up or slow down an actual event, perhaps misleading the jury into believing something about how much time someone had to do something;

• Show more or less lighting than originally available; • reveal more or less field of view; • reveal more or fewer background items in scene (or arbitrarily

place them or indeed invent them); • affect the attention the viewer places on an isolated event. Every

photo or video literally creates a frame around an event or moment or thing—it’s the very definition of “20-20 hindsight”. This alone can unfairly suggest to the jury that the event or thing was as obvious then in its context and it is now in court.

• Include aspects (such as sound) that the creator of the exhibit just invented to create a mood or feeling. As we know, music can be extremely evocative. I recall a case in which the tenant, complaining of loud music from a neighbor, wishes to play the accused stereo system in court at the same purported level as at the apartment. This was a difficult problem- would it really sound “the same” in my sound-proofed court even at the same level?

These problems have a variety of labels in the Evidence Code: aside from the obvious 352 objection, we might ask whether the exhibit is in effect coaching the witness, or leading, or argumentative. Completeness is a nice problem. Once a party has introduced a bit of a document the other side has the right to introduce other bits of it to ensure a fair context, that the jury has a complete picture. But there are two complementary problems: (i) it may not be necessary to admit the entire 1,700 page SEC filing to explain a sentence on p. 93, and (ii) it can be very difficult to determine what the “whole” document is, i.e. what does or does not belong as part of the context for the bit originally admitted. This latter issue comes up repeatedly with electronic documents, such as string of

emails, web sites, databases, and more, each of which are agglutinations of various writings created at various times which relate to each other only in part. A request: try not to spring this stuff on the judge in the middle of cross examination. 10B. Animations ≠ simulations The terms animation and simulation are occasionally mixed up. That is not helpful, for the same reasons that demonstrative and admissible evidence ought not be confounded. An animation is, usually, illustrative and not evidence, whereas a simulation is admitted evidence (you hope). But here’s the rub: One cannot tell, simply from looking at a video of, say a computer generated car swinging around a computer generated curve on a computer generated hill and hitting another computer generated car (imagine the digital squeal of tires, smoke as the brakes are applied, the recreated sound of metal on metal) one cannot tell, as I say, whether the video is an animation or simulation. And the judge cannot rule until he knows which it is. It up to the lawyer to let the judge know, and this depends on the lawyer knowing the difference. An animation is no better than a drawing on a tablet during examination, and just illustrates what the witness is trying to get across. Just as a witness might draw a hill, a line for the road, a blue box for his car coming around the curve and a red box for the other guy, with perhaps dotted lines showing the trajectory of his car, so too he might have assisted in the digital re-creation of the scene, with animation experts simply following his instructions and assembling something which he testifies on the stand is an accurate representation of what happened as he saw it. In this sort of situation, not much foundation is needed, and everyone knows who to cross examine on the matter: The testifying witnesses, not the animator or the other dozen people who might have had a hand in the creation of the demonstrative exhibit. And if the witnesses can’t provide the foundation (“I have no idea if the car crossed the centerline as it does in the video”) then the jury should not see it. Simulations are radically different. A simulation is a re-creation of a situation which no one may have ever seen—and yet be admissible. It comes in as real evidence. The jury might ask to see it again during

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deliberations, and, as opposed to how the court would handle demonstrative items, the court would normally accommodate the request. A simulation is software speaking. It’s as good and as bad as its input and assumptions, just like any software. We trust (if we do) our bank statements and temperature reports from across the United States because we think the inputs were correct (the amount and date on the check, the sensor readings at Tampa Florida and Concord New Hampshire) and the processing software is accurate (it accurately adds the sums on the checks, and accurately averages the hourly temperatures in Concord to get a daily number). We trust the system as a whole, so we rely on the output. So too with simulations. One might have, for example, a simulation of the movement of contaminants in groundwater. No one is actually down there, two hundred feet below the surface, watching and counting and timing the molecules of chemicals. Instead, we use experts to (i) tell us about the nature of the soil or rock at that location, its permeability, the amount of chemicals released and their propensity to infiltrate surrounding materials at various rates, the pressure of the hydraulic system, and so on and so forth, (ii) generate algorithms that account for these facts, and (iii) run the program. Lo and behold, the chemicals will (or will not) flow from here to there in such and such a time period. We can use simulations to tweak the assumptions (how much did it rain?) and get a range of likely results. Simulations are also used with events that were literally, at some level, observed by humans, but which either (i) produce evidence concerning the reliability of the eyewitness testimony, or (ii) shows facts at a level no human could have perceived. Take a collapsing construction crane. In the ensuing personal injury trial, witnesses testify a third party truck crashed into it, causing it to twist and collapse. Simulations based on facts about the strength of the metal and its behavior under stress might show that the crane would have collapsed anyway, that the truck could not have caused it to twist. The simulation might create a slow motion view, teasing out critical sequences of events, which experts testify must have happened in such a sequences to account for the evidence such as the arrangement of debris, the characteristics of the steel and so on. This sort of thing is done with aviation accidents, to test out a series of hypotheses which is a way, as it were, to reverse-engineer the cause when the eyewitness are dead. Known facts about the airplane (staling speed, weight, altitude, speed at the time, etc.) are assumed and then experiments

are conducted to reach the observed result, such as the configuration of debris, the fact that propellers appeared to be turning at impact, and so on. If the inputs and algorithms are valid, and only one set of assumptions fits the observed facts (e.g. the assumption that the altimeter must have iced over and the pilots increased the stalling speed by pulling the nose up), then the simulation may be evidence of that hypothesized cause. The depiction of an animation or simulation is subject to all the 352 issues noted above with evidence generally, and is an issue which is entirely independent of whether animation is endorsed by the testifying witness or the simulation has the proper foundation. Too much is left in, certain colors are used, items or points of view are misleadingly emphasized, sound is slyly used—all these may be issues. Prejudice may be a function not so much of what is in, but what has been left out. This is especially a problem in simulations and animations, because by definition each is an abstraction of real events, which must mean a reduction in complexity. Recall the etymology of abstraction: to drawn or drag away, detach or divert, in effect to take away. Real word events are of infinite complexity: we can dig as deep as we wish into minutia, or expand as much as we desire to new contexts and perspectives. Animations and simulations are simplistic models of supposed real world events; they are therefore always wrong; but (we hope) not a in material way. Physicist Phillip Anderson said in his 1977 Nobel acceptance speech, “The art of model building is the exclusion of real but relevant parts of the problem, and entails hazards for the builder and the reader. The builder may leave out something genuinely relevant; the reader, armed with too sophisticated an experimental probe or too accurate a computation, may take literally a schematized model whose main aim is to be a demonstration of possibility.”

Ώ I have gone through this at some length to generate an intuition as to the distinction between animations and simulations, because the foundations for the two are so profoundly different, and because at trial it is too late to remedy misunderstandings about that difference. When it comes to simulations, many layers of expertise may be needed before the jury can see the final product, and unless lawyers are sensitive to the fact that these experts must be disclosed pre-trial, the judge is unlikely to admit the fruits of their labors. With an simulation, there usually is no eye witness to

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examine: One is in effect examining the experts who collected the data (and perhaps the eyewitness who observed the data, or experts who testify that the collected data is the sort of thing experts rely on) and the experts who created the algorithm. The other side may claim that it desires, pre-trial, to examine the (1) source code of the programs used to perform the analyses (the algorithm) and (2) all data inputs and (3) software used to create the displays (i.e. video) based on the algorithm’s output. For imaginative but deeply antagonistic counsel, there is endless room here for stunningly expensive discovery disputes on trade secrets, burdens, and scope of expert discovery. But that would be a Sin. You know which one.

Ώ Resources Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial and Trial http://www.fjc.gov/public/pdf.nsf/lookup/CTtech00.pdf/$file/CTtech00.pdf http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2009_1/schofield http://criminaldefense.homestead.com/Technology.html Harold Weiss & J.B. McGrath, Jr., “Technically Speaking: Oral Communication for Engineers, Scientists and Technical Personnel” (1963)(72 hours after presentation, typical juror will retain only 10% of verbally presented information) Dr. Damian Schofield, “Animating Evidence: Computer Game Technology in the Courtroom,” http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2009_1/schofield (includes references to many studies) K. Fulcher, “The Jury as Witness: Forensic Computer Animation Transports Jurors to the Scene of a Crime or Automobile Accident,” 22 U. Dayton L. Rev. 55 (1996), http://heinonline.org/HOL/Page?handle=hein.journals/udlr22&div=9&g_sent=1&collection=journals

E. Tufte: http://www.edwardtufte.com/tufte/ Books: Beautiful Evidence; Envisioning Information This is essential reading for all whom would communicate with graphics. Tufte’s magisterial (I have always wanted to use that word) writing on the demons and dangers of PowerPoint, “The Cognitive Style of PowerPoint: Pitching Out Corrupts Within,” is available at http://www.edwardtufte.com/tufte/powerpoint

Ώ “Alsup Singles Out Oakland Solo for 'Abe Lincoln' Approach” by Ginny LaRoe, LegalPad (Recorder Blog) William Alsup, the exacting San Francisco judge probably known as much for delivering dressing downs as for his legal acumen, recently offered a piece of advice for lawyers who appear before him.

"Do what Abe Lincoln did when he was a lawyer," the judge said last week in an interview with The Recorder. By that he means: limit yourself to arguing a couple of winning issues.

Is it possible to live up to that standard? Well, meet Randy Sue Pollock. The Oakland criminal defense solo spent the better part of the last six months before Alsup representing one of seven MS-13 gang members in a grueling racketeering trial. She had the "courage," Alsup offered when talking in general about tips for litigators, to take the "less is more" approach.

"Randy Sue Pollock got an acquittal in that case," Alsup said, "and she had the fewest number of questions, the shortest opening statement, the shortest closing argument, and there were many witnesses she didn't even examine." The judge didn't stop there.

"She had a very clear-cut agenda to zero in on one or two key issues. She did that very effectively, and at the end of the day, the jury gave her a complete acquittal of her client."

Yes, there's more. "And I'm not taking anything away form any of the other lawyers ... I think the lawyers were excellent." (He didn't name any other names.) "Her approach of less-is-more was completely vindicated at the end. Said Pollock when told of the exaltation: "That's amazing."