My first job in law school was with an old school criminal defense lawyer, Milton Rosenberg.  Milt was old then, and showed a baby like me the ropes.  He was a “Trial Man.”  That’s how criminal defense lawyers were broken down, there were trial men and law men. 

Trial men were the gladiators, the gunslingers.  They were Perry Mason or Judd for the Defense.  They were the guys people thought of when they thought of criminal defense lawyers.  It was the sexy job, though there was little sexy about Milton.  Still, as he explained to me on day 1, he was a trial man.

Milt’s knowledge of the law was nearly zero.  He couldn’t be bothered.  It wasn’t what trial men did.  He stood up in front the jury and did his thing.  He schmoozed the judge, who he also assumed knew nothing whatsoever about the law, and charmed the jury.  While he wasn’t sexy, he could be quite charming.  And he was afraid of no one.  He had an ego that couldn’t be beat, and was fearless striding into a courtroom where he believed he knew everything that could be known.  That just didn’t include the law.

Because I was a kid, and because I was working for Milt, I was denominated a law man.  It was my job to tell Milt anything about the law he needed to know at any given moment.  For my $3.25 an hour, I had to know the law and know when to whisper in his ear so he would look like he knew the law.  More importantly, I would write the motions and appellate briefs, because trial men didn’t do stuff like that and somebody had to.  That was a job for law men.

Young Shawn Matlock bemoans the fact that trial lawyers don’t do appeals.  Nobody talks about trial men and law men anymore, but I guess the distinction way back then still has some vitality today.  When I made the switch from law man to trial man after leaving Milt’s employ, I never lost my thirst for knowing about the law.  I never understood how one could be an effective trial lawyer without knowing the law better than anyone else in the courtroom. 

Trials raised a million legal details where a firm knowledge of substantive law enables you to identify issues and address them, cogently and effectively.  There’s no time to stop the proceedings to research an arcane issue.  More importantly, there’s no time to stop and think when argument or testimony is moving forward at the speed of sound.  You either jump in and make your point or the opportunity is lost.

Lawyers today don’t walk around proclaiming their ignorance of the law like a badge of honor.  Milt did, but Milt is long gone.  He’s a real dinosaur of the law.  I can only think of one old time lawyer still practicing that fits that mold, the famous “Don’t Worry” Murray Richmond of the Bronx.  I love Murray.  But the only thing he’s put to paper in the entire time I’ve known him are numbers on a deposit slip.  If you want someone to charm the pants off a jury or schmooze a judge, there is nobody better than Murray.  But don’t ask him law.

My bet is that Shawn’s observation that today’s trial lawyers don’t do appeals is accurate, but not because of the same rationalization.  The reasons are the same, but the excuse is different.  The skills needed to do trials are very different than the skills needed to do appeals.  The former requires an ability to analyze and act at lightning speed.  The primary focus is on people, not law.  Trial lawyers persuade juries, and the ability to persuade is the ability to understand people.  Trial lawyers examine witnesses, and the ability to formulate and reformulate questions in a constant frenzy, all while standing before an audience whose views matter most, is critical.  These are the skills one needs to try cases.

Appellate lawyers are deliberate.  They work in private, researching caselaw meticulously and expressing arguments through the written word.  They agonize over every sentence, over every word.  A good brief has no extra words.  Every word serves a purpose.  They formulate and reformulate sentences to best convey their argument and its support.  They can see the gaps in their points, and know that some appellate judge’s clerks will see than as well.  There is no schmoozing in an appellate brief.  It is cold, hard and, if poorly conceived, exposed for all the world to see the flaws in the lawyer’s thinking or skills. 

The trial man can talk his way through his blunders.  The mind has an amazing ability to skip over logical gaps and inferential leaps, and before one has a chance to ponder the error of a position, it is busy processing the next point and is left with only an impression of whether the lawyer was right or wrong.  There’s no time for parsing words. 

The law man suffers from lengthy scrutiny.  His words stare back at him, and he cannot hide from the flaws of an argument.  There is no talking one’s way past a bad point on appeal, no diversionary tactic that will get the court to overlook the lack of support from precedent or a logical gap in a critical argument.  In appeals, there’s no place to hide and no one to charm.

Young Shawn’s observations are correct.  Few lawyers do both trial and appeals, and few still do both well.  For me, the opportunity to do both trials and appeals is like a vacation, where I get to enjoy doing a totally different job for a while.  It’s a break from the tedium of doing the same thing day after day.  But then, I like to write, as may be obvious, and I particularly love to write appellate briefs.  They are the purest form of legal writing, and they provide an opportunity test one’s logical thinking as well as the edges of the law.  Inside this trial man is a law man dying to express himself.

But the fact that so many trial lawyers don’t do appeals is hardly a bad thing.  Every appellate lawyer sees lawyers stand before the appeals court and get trounced because they don’t have the chops.  It can get really ugly watching five judges rip some smarmy lawyer’s head off for trying to BS his way through oral argument, or presenting a brief written in crayon. 

It’s always best to work toward one’s strengths.  Most people don’t have a clue what their strengths are, and misconstrue success in one small niche with generalized genius.  They can’t begin to figure out why they fall on their face when going outside their little box.  So it’s true that many trial lawyers are smart to stay clear of appeals, even if only because they don’t have the patience or skill to write.  Taking on appeals when they don’t have the skill does not help their client, and they are right to keep far away and leave it to others who are more inclined toward written expression.

Don’t be so harsh on these guys, Young Shawn.  They may be wrong to not develop their “law man” skills, and they may not be helping their clients by pretending to be trial men while lacking the needed “law” piece, but at least they have the good sense to keep their skill-less butts out of an appellate courtroom where they could do some real harm, both to their client and to the state of the law.  Be thankful for little things.