Tuesday Talk*: Be A Trial Lawyer (Without Getting Off The Couch)

Fellow legal curmudgeon Mark Herrmann tells a story with a twist.

I heard about a trial recently that made me think about a (possible) generational difference in the law. The trial was in-person. The trial lawyers were in one city, and the trial was 1,000 miles away; the lawyers would have to fly to the trial site. If folks were aggressive about it, they all could have had one, and some two, shots of the vaccine before they left. So the senior trial lawyer asked his team: “Who’s willing to fly to the trial site?”

One associate — the senior-most of the bunch — said yes.

Two associates — the junior members of the team — said no. (Yeah, that’s a lot of associates. It was a big case.)

Granted, this story reeks of Biglaw, thus distinguishing it from trench law as practiced by us starving groundlings of the Guild. After all, these were the law review geeks who deplatformed wrongthinking speakers before cashing their new associates’ hundred grand wardrobe allowance checks. But then, Biglaw doesn’t get much of a chance to do trials, unlike real lawyers, and doing trials, even seventh seat, beats sitting in the library perusing documents for any mention of “fraud” or proofing M&A agreements for the correct number of zeros.

In other words, this is about as sexy as lawyering gets at Biglaw, and for a baby lawyer to get a chance to be anywhere near real lawyering used to be the thing they wanted more to do than anything else. “Used to be” is the operative phrase.

Suppose, a generation ago, a senior partner had asked, “You have to run through a burning building to get to the trial site. Are you willing?”

Before he finished the question, the smoldering associates would have appeared on the far side of the structure.

A trial!

It was that big a deal. Not only would an associate sell his soul to get a chance to be near real lawyering, but also to let the senior partner know that he was ready, willing and able to do whatever it took. Carry the briefcase? Fetch the coffee? Polish his shoes? Heck, the associate would birth his baby if that’s what it took.

We were always quiet about this, because we didn’t want the firm to know, but we would have paid the firm money for the firm to allow us to watch a trial. And more money to examine a witness. At big firms, watching is as close to trial experience as many associates get. It’s where the action is. You’d do anything for a trial.

Stop laughing, you gunslingers. These little shits are pulling down $190k for parking the boss’ Porsche while you’re eeking out $34k for trying ten cases a year. It’s a tradeoff. Or at least it used to be.

Are we really seeing a change in attitudes about work-life balance?

Alright, alright: I hear the chorus of you saying in unison, “Okay, boomer.”  Maybe you’re right. Maybe I’m just part of an older generation thinking that the younger generation is less committed to its careers.

But it’s also possible that’s true: The younger generation may in fact be less committed to its careers.

But then my once-wizened brother whose firm hand guided a generation of above-average children to the realization that no matter what their mommy told them, there were not yet special, utters the unthinkable.

It’s also possible that’s desirable: Why did people ever ruin their lives for the right to participate in a trial?

Is it possible? Is putting in the effort to get off the couch to be close to a trial, to be a lawyer, “ruining their lives”? Is being a lawyer just too much effort? Are the times a’changing, as Brother Herrmann asks, or is it good enough to pretend to be a fierce and important lawyer on twitter even though you couldn’t find a courthouse with Google maps?

*Tuesday Talk rules apply.

50 thoughts on “Tuesday Talk*: Be A Trial Lawyer (Without Getting Off The Couch)

  1. B. McLeod

    Maybe it’s just the infrequency with which cases now go to trial, such that they don’t see the advantage of experience with an event that they have a 95% to 98% probability of never having to handle.

    1. SHG Post author

      One of my fears is that the dying trial means that we’ll lose the skillset necessary to try a case. The gunslingers of my baby lawyers days are largely gone now, and it doesn’t appear to be far off that there will be few lawyers left who can try a case. The situation is a bit different for crim than civil, but both are trending that direction.

      So is it that they won’t put themselves out for a skill they’re unlikely to need, even if it could make them the last trial lawyer in America, or are they just lazy entitled little shits who can’t be bothered getting off the couch?

      1. Hunting Guy

        In my organization, their next efficient report would state something along the lines of “Individual lacks initiative. “ or “Unwilling to expand experience.”

        1. SHG Post author

          I’m reliably informed by baby lawyers that all the olds are stupid, wrong, don’t get it and don’t pay them enough, so naturally their reviews will be wrong.

      2. B. McLeod

        I think it’s just their next iteration of, “Is this going to be on the final.”

        The other potential contributor is the BigLaw intolerance for non-success. When firms have let hundreds of highly-paid young associates go in past mass layoff events (e.g., 2008-2009 downturn) they typically went on to eventually replace the purged lawyers with shiny, new graduates. The laid off lawyers were left wandering the hinterlands, usually unable to land another large firm post. As near as I could tell, they basically just became untouchable because their layoffs marked them as “unsuccessful,” and this was incompatible with the marketing images cultivated by the large firms.

        One thing that always comes with every trial is the risk of non-success. Associates who push hard to get into trial work now are putting themselves in a segment of practice where a certain amount of adverse outcomes goes with the territory. Maybe that is giving rise to some perception by young lawyers that their long term prospects are better if they can manage to be transferred away from litigation entirely.

        1. SHG Post author

          I speak to baby M&A kids who tell me what they really want to do is litigation. They aspire to do deps some day. They can’t see me tear up over the phone.

          1. B. McLeod

            History tells us that 90% of them won’t last a decade in the grinder anyway. I suppose it could be that they are thinking of the day when they will leave, and nobody will bring them complex transactional work once they are in a small practice environment.

      3. delurking

        Worried about trials dying? Well, you just need to revamp trials by making them online and asynchronous! Lawyers can send out questions by email during the day, and then people can answer in the evenings after the kids go to bed, so trials don’t interfere with jobs and family time and such. Sure, individual trials would last longer from start to finish, but you could run lots of them in parallel! With trials being so much cheaper to run, there would be lots more of them. The mark of a good trial lawyer would be how many trials he can successfully run in parallel. I bet the really good ones would have around 50 trials going at once. It would be just like the difference between in-person poker and on-line poker. It would be awesome!

        1. Sgt. Schultz

          One of the reasons lawyers like SJ is that Scott doesn’t allow many blithering idiots to spew stupid crap like because they think they’re hiliarious, even if they aren’t funny to lawyers and are frankly just assholes.

          You’ve turned into a massive asshole.

          1. SHG Post author

            I’m guessing that delurking was trying to be funny, in his non-lawyerish way. He didn’t mean to be an asshole. He just was.

    2. Rengit

      Given that significant chunks of BigLaw practice are becoming less and less distinguishable from what Risk Management and Compliance firms do, especially when large corporations are folding or blending their legal departments with the compliance/regulatory departments or staffing the latter with attorneys (or even non-barred or inactive J.D.s), BigLaw is becoming more and more risk-averse, and trials are always a risk.

      I recently heard someone refer to himself as a “risk management attorney” and I thought, “Isn’t that what all us non-litigation attorneys do when we provide legal advice, particularly when money’s involved? Give them advice to reduce unknown risks to their money?” I guess you need a special title for that though.

  2. Denverite

    My biglaw story of the day. Setting is an arbitration hearing with three arbitrators. The ask is for several hundred million of damages from a major international financial firm. Defense is one of the biggest of the big law firms with the full circus (two senior partners, three junior partners and a shifting cast of law review associates who are mainly bag carriers and cigar lighters). We are in the second week of trial and the most senior of the junior partners (15 years at the firm and at least 40 years old) is allowed to do a direct exam of a minor back office functionary at the defendant. Basic job is to lay the foundation for various business records and explain the key entries. The poor man was sweating profusely. Started every question with “and” and couldn’t avoid multipart questions. His eyes never left his notes and he spent beaucoup time asking endless followup questions when he didn’t get the perfect word for word scripted answer he wanted. What should have taken 20 minutes droned on for more than an hour.

    Yes the skillset is dying because trials are so rare now perhaps because client wallets have already been drained by endless discovery, motions practice, vampire experts, and over staffing. And law schools find the craft not conducive to tenure creating law review articles. But even in this world those who are truly skilled at the dark arts of trial work will prosper — they will feast on better settlements.The insurance companies and their opponents know who they are.

    1. SHG Post author

      War stories are generally frowned upon here, as we all have our own and this is my blog, not yours, and yours was kinda boring. But other than that, cool story, bro.

  3. L. Phillips

    I’m sticking with human nature winning out over “woke” anti-competitiveness. In my case it was real guns, but the phrase “Have gun. Will travel” has broad application and appeal. And it still pays well.

  4. Jake

    There is one thing about success in professional services I know is true: No matter the cost to your health, sanity, or relationships, you must show up where you are supposed to be on time, every time.

  5. BigLaw Clerk

    Your post reminded me of the Second Circuit changing admission requirements years back. They used to require attorneys have “argued in either State or Federal appellate courts at least three appeals of a substantive nature“.

    They let you slip in a moot court case from an ABA school (that meant something way back when, too….) but only for one of those.

    And they weren’t kidding. The clerk needed the TOPIC of that moot court appeal and info about it before they let you into the bar with “only” two arguments IN COURT, on the merits, in front of a Judge already under your belt.

    Eventually, they said it could be appeals or “motions of substantive nature in which briefs or memoranda of law are submitted”.

    Now: scrapped altogether.

    The times, they are a changin…..

  6. Steve King

    Speaking as an ordinary Joe, I find the topic both sad and alarming. Is this a sign of structural change in the practice of law?

      1. Steve King

        [Ed. Note: In accordance with TT rules, I will post comments no matter how utterly fucking idiotic or off topic. This comment has compelled me to revisit that rule, as you just pushed it past my breaking point in your final comment at SJ ever.]

  7. Burn out

    I drank the kool-aid and did 7 felony trials back to back with no days not in trial for three months when I had three kids under 5 including an infant. Followed that up by a three month murder trial three months later.

    It ruined my marriage and my life.

    1. David

      Seven trials back to back sounds like piss poor trial management. You don’t say, but I assume you’re a PD, so your dedication to your clients is appreciated, but if you don’t manage your calendar better, that’s what happens. But it also seems impossible for you to do good work under those conditions. That’s part of smart trial management too. It’s not just trying the case, but trying the case well. That doesn’t seem possible.

      Sorry about your wife and life, but if she couldn’t hold it together for three months for you under the circumstances, trials weren’t the problem.

  8. C. Dove

    Seeing as Tuesday Talk rules apply, a personal story if I may. Before and after getting my bar card, I volunteered to second chair several murder and attempted murder cases just for the experience. I was promised, and given, no money for my services. And I willingly signed up even if it meant I did not get to actually cross anyone or that I spent countless hours reviewing discovery, visiting crime scenes, preparing trial binders, outlining crosses. I was promised, and given, no money. This was strictly pro bono.

    Why did I do it? As a lawyer with trench mouth once said to me, “It takes a rat to know the sewers.” It was an opportunity to get hands-on experience working side-by-side with some of our local, highly qualified trench warriors. (Before you say, “Free?!?” note that trials are much harder to come by than they used to be.) TO me, tt was an apprenticeship as far as I was concerned. There was no way I was getting that experience by sitting on the couch.

  9. Buncy

    Jury trials on the way out? Looks like it. I remember back in the seventies lawyers lamenting that judges were conspiring to eliminate jury trials. I saw it happen — jnov’s, summary judgments, all kinds of obstructions thrown up by lazy judges, the kind that Jonathan Swift, dearly loathed.
    Volokh Conspirers had a wacky woman on for a while arguing that jury trials in civil cases should be abolished. I wanted to strangle her. What has happened to our constitutional republic?

    I had a case in front of a goofy judge who would not let me cross-examine with a leading question. “Ask a question” she demanded. She would invariably interrupt. “I am asking a question, a leading question,” I answered. She stopped me and threatened me with contempt. She went to Memphis State Law School, a third-tier (or fourth or fifth) law school.
    A few months later I got to cross the same witness in another trial with an old-school judge, and he let me cross with leading questions. The witness tried to slither out of it, but the judge made her answer. I was so pleased, and then she (the witness) imploded. That marked the end of her campaign of malevolence. (sorry for the war story, my dear Oracle)

    1. Sgt. Schultz

      Most of us here are lawyers. We have stories. Yours sucks, and you’re barely coherent telling it.

  10. Mark Dwyer

    Biglaw? What’s that.

    In state court, before the plague, middle-aged and aging 18-b lawyers (I identify with that latter group) tried cases. And, as you put it, “baby” public defenders tried cases.

    Some, especially those defenders, did not want to be “live” in court during this last period. OK. When we are all safe, I expect they and the 18-b attorneys to be back. The same attorneys. The same judges. And if we want to make sense, “live” trials only, except for occasional witnesses. It will be as it was, but with a huge backlog.

    In 2022.

    1. SHG Post author

      One of the problems with raising Herrmann’s story here is that we, as CDLs (and trial part judges), still try cases while civil and biglaw types do not normally have the opportunity or situation we do. I hoped some would deal with the issue Mark raised and whether his work/life balance query at the end was a good thing. Unfortunately, it didn’t happen quite that way.

  11. Miles

    Wow, what a worthless pile of shit comments today. BTW, I’m with SS, trash Buncy.

    As for your post, and Herrmann’s “is it desirable?” no, it’s not. They want the money. They want the job. But they don’t want to put in the effort to be something. At the junior associate stage, they’re useless overpaid snot-nosed nobodies incapable of anything worth a damn. And they want to put their work/life balance first? Let somebody who wants to be a lawyer have their jobs and paychecks, and let them lives out the rest of their lazy pathetic lives on the couch, their highest and best use. TL;dr: fuck those little entitled shits.

  12. Buncy

    I have watched some great trial lawyers at work: Racehorse Haynes, Art Vann, Edward Bennett Williams, Henry Rothblatt, Charles Terry, Melvin Belli, Robert Swain, Louis Nizer, Roy Cohn. I had cases in which Cohn and Belli were co-counsel. Belli and I took a big chunk out of the VA hospital here in my town for malpractice and wrongful death. He was a gentleman’s gentleman.

    I don’t see those personable, magnetic qualities in any of the lawyers who hang out here. Cohn had the reputation of being a jerk, but he was always very cordial with me.

    Are you mutts all dyspeptic and vitriolic?

    I am 76 now and not as sharp as I used to be. So it’s time for me to move along.

    1. SHG Post author

      Then someone as important as you certainly has better places to spend his very valuable time where you won’t have your wit and wisdom wasted on us dyspeptic mutts. Bye.

  13. Buncy

    One more I should not forget because he was unforgettable — Ed Marger from Atlanta. He was the best and a great conversationalist. We flew to Denver together and spent time as co-counsel on a cocaine cowboys case here in WNC.

    1. Ron

      My god, you’re a pompous ass. Not the first self-important rando to think he shows up and gets to run the show, and likely not the last to get storm out in a huff when he wasn’t adored. And as jerks go, you were a tedious bore.

        1. SHG Post author

          When I saw the new handle, “ex-buncy,” I thought to myself, “Well, that’s funny. Maybe there’s hope for him yet.” Then I read the comment and said, “nope.”

          Here’s a thought: Don’t walk into a room and fart, then wonder why nobody wants to stand next to you. Maybe you’re 76. Maybe you’re 12. Nobody knows. Maybe you’re the most important lawyer in the history of the world. Maybe you’re not. Nobody knows. All anyone knows is that if your comments are assholish, you’re an asshole.

          There are plenty of old people here, not a few of whom are judges (some of whom keep their positions under wraps), and plenty of big time lawyers, as well as plenty of people whose names are completely unfamiliar. If you want to play with them, it’s up to you to get along. Here, you’re the new kid. If you don’t want people to call you an asshole, don’t be an asshole. And if you don’t feel that you’ve been treated with the respect and courtesy you deserve, then hit the pink button on the sidebar and ask for a refund. Now, you’ve gotten more attention than you deserve. Stay or go. I’ll be here either way.

  14. KP

    Ah, so this is what lawyers are like when they disagree..

    Are you sure you’re not being dinosaurs? These days it seems the Govt somewhere accuses a multinational of doing something wrong, the lawyers all get together in a big room and somehow the company pays a fine of billions while saying they did nothing wrong. Then there’s the plea bargaining with the cops before a trial gets off the ground, and the final nail must be zoom and working from home.

    Delurking might be right, you could run digital trials simultaneously and get rid of the personality distortions caused by having lawyers trying to make a jury cry. Soon enough a computer will be able to weigh up the evidence presented and make an unemotional decision..

    Its a good thing you’re all up for retirement, you won’t like the new world!

    1. Hunting Guy

      KP.

      “Ah, so this is what lawyers are like when they disagree..”

      Ummm. Wasn’t there a post about civility a little bit back? Anybody remember it?

      Ah, that’s right, April 3, 2021.

      1. SHG Post author

        Civility in litigation isn’t necessarily the same as civility in the comments here. Short of bloodshed, this is relatively civil.

        1. Hunting Guy

          Michael Nunes.

          “Civility is a necessary part of the foundation of any successful civilized society. In socially advanced societies, this civility is extended not only to those within our peer group, but also to the occupants of the greater social fabric, whatever their station in life.“

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