From time to time I write about law here, but not that often. Rarely is it about my own career. But, I did write Ten Things You Didn't Know About Lawyers (and may not want to) almost four years ago on 10/26/09, which did cover a few things that have happened to me. Even though the chances of anyone (a) having read it, and (b) actually remembering it, are small on the quantum particle scale, I will try not to repeat myself too much.
As of September 12, 2013 I was admitted to practice law in the State of New York for 29 years. It's not a round number, but so what. I know how long it has been because when I was admitted to practice in 1984 the judge who swore us in told us to remember that date as if it was our birthday. So, I did. I also remember when I was a newly admitted lawyer having an adversary in a case who had been practicing 30 years. I was shocked how old he was and that he still could be practicing. I don't think I will be feeling that way in one year. I also remember how old I thought my two bosses were. But I am now about three or four years older than they were when I met them. Holy smokes.
Twenty nine years is a fairly long time. I could probably write dozens of autobiographical pages of my experiences. Fear not. I think I will celebrate this anniversary by writing merely about my first jury trial and leave it at that (if you don't include the diversions - you know I can't help myself).
Somewhere about ten to thirteen years ago my older brother, not figuring to live so long for a number of reasons (and he was right) wrote his own quirky last will and testament. He ended it pretty much (could be exactly) like this: "On the whole, life wasn't so good. But, it wasn't so bad either. May the force be with you." I can't say I feel that way about life but I thought it was pretty good writing, so I am going to steal it with his posthumous permission (checking . . . hold on . . . he says "okay" but to give him credit). So, on the whole, being a lawyer wasn't so great. But it wasn't so bad either. May the force be with you.
There's not too much I have to complain about. I earned a living and met a lot of great people some of whom were even technically adversaries. I worked with people who have become lifetime friends. At some point I realized almost everyone in my life I knew other than a few high school friends was because I was a lawyer. I also learned a lot and learned to work really hard for the first time in my life, to the degree that I could disregard almost everything else while focusing on a trial (even eating - the only thing other than heartbreak that ever made me forget about food). The theory of law is wonderful, creative and can be fun. When law works as it is supposed to, it is a marvelous, even a beautiful thing. A successful cross-examination after which the jury or judge just can no longer believe a witness, or winning a difficult motion or appeal is exhilarating. Helping a client you like, particularly a friend, is about the best part of it. I've been luckier than unlucky, more successful for my clients than unsuccessful and that feels good. On the other hand, there is a lot on the down side. Losing always feels bad. Most lawyers I know are overstressed, fed up with judges who don't follow the law, clients who are their own worst enemies, other grumpy lawyers, exhaustion and pressure, too low pay for too much work. And for those in the corporate world . . . arrrrgggghhhhh!!! The frustration is unending and exhausting.
I read a poll taken years ago of lawyers in California. I can't remember the exact statistics, but it was something like 4/5 were unhappy with their career and 3/4 would not recommend the field to their child. That is not much of an advertisement. Trust me it has gotten worse.
My first job was great though sometimes more than a little crazy. My two bosses were partners and had been so for a long time. But other than that they had gone to school together they were as different as Oscar and Felix. So, let's call them that. Oscar was the great trial lawyer gunslinger (still is) who more than once was front page news, and Felix, now a retired judge, the more serious worker bee who kept the place operating. I learned different things from both of them about trying a case, but foremost among them from Felix that if you do not have an outgoing personality, you need to convince a jury that you are sincere. The best way to do that is to actually be sincere. From Oscar I learned that it was okay to emote in front of a jury (even cry) so long as it was genuine.
I have not actually cried in front of a jury. I did get emotional summing up once representing a burn victim, and that worked out pretty well, and on another case I got teary in my own home rehearsing my opening in a mirror on a death case precisely because I did not want to do it in front of the jury later that day. My co-counsel was a nice man, but a stone cold former homicide a.d.a. and I sure knew he wasn't going to cry (it settled anyway at the last moment). The closest I came to publicly letting flow was a case I was trying with an associate helping or "second seating me." I had the injured plaintiff's wife on the stand. She was describing how they got together as teenagers and how he had changed as a man after being burned. It was pretty emotional. I saw the court officer walk away, eyes brimming. I saw the judge turn his chair around so he could not be seen blubbering. I was doing everything I could not to let my voice break when from my associate's chair a great sound burst forth. "GULP!" Later it was funny. But right then, he almost got me.
The third thing I had to find out for myself - it takes a while to learn to be yourself in front of a jury. At first you are imitating other lawyers, perhaps even those you have seen in film. Well, maybe there are some people who get it immediately, but I haven't personally seen any young lawyers accomplish that. And it certainly wasn't the case with me.
My first jury trial was tough to get through. It was a case my bosses took simply because the same clients had another better case. It was a dental malpractice action and I was handicapped in several ways. First, back in the 80s, before they revamped the system, you could delay bringing a case to trial, if not forever, for a long time. But, even then, there were limits. This case was 17 years old. The judge who ordered me to trial was not concerned that I was in grade school when the incident happened. I distinctly remember him saying "The sins of the fathers are visited on the children," referring to my bosses. It was not a big case that one of them was going to try. For one thing, though the dentist had been a jerk to my client and caused her a little pain, he really did not permanently damage her teeth. In fact, some 17 years later, she had one of the nicest set of choppers I've ever seen. Good for her, but not what you want to show a jury at all in this type of case. Second, my bosses were not very fond of the clients and vice versa. They seemed nice to me, and frankly, they were kind of justified in being a little testy by the 17 year delay. Nevertheless, at the time I was seeing things from my bosses' perspective.
Oh, one more thing. I really didn't know what I was doing. I knew I could cross-examine someone, because I had done it in bench trials (no jury, just a judge). In my first bench trial ever I was representing a divorced mother whose dirt bag ex-husband had a successful business he could hide through his brother and was paying her almost nothing in support, pretending to be poverty stricken. My adversary was the leading divorce attorney in that county at the time. I called his client to the stand. He claimed to make a few hundred dollars a month. I asked him how he managed to eat on that pittance and he said he always ate at a friend's or relative's house for free. So, we went through his week - Sunday, Monday, Tuesday, Wednesday, Thursday, Friday and Saturday. On each day he described to me with perfect recall whose house he had eaten at. When he was done, I said, okay, let's do it again. And, of course, having made the whole thing up, he could only stutter - "Whatever I said a few minutes ago." The judge was looking at him darkly and then I asked the next question which I had in my pocket - who owned the corvette he had driven up to court in? The judge called both counsel into chambers and made the other side settle immediately. But, I have digressed in a war story, which is unfortunately, a very contagious disease in my profession. Back to my first jury trial.
I prepared for the case for days. Oscar told me not to worry when crossing a medical witness because though they may have more medical knowledge, I knew my own field better. He was right. Doctors and dentists have been some of the worst witnesses I've seen and crossing them count among my favorite memories as an attorney.
We had our own expert witness, a dentist, and a very nice man. I went to his house that weekend to prepare him. Despite what was ridiculous treatment by the defendant dentist of my client, our expert couldn't seem to agree that he could find any deviation from good and accepted dental practice (the magic words the judge needed to hear not to dismiss the case). Though I found that astonishing, I had to go step by step through the evidence and ask him for each act if he would have done what this dentist did? He said no each time. Finally, he agreed, it wasn't good and accepted dental practice. Phew. Without that I had no case. It was far from the last time I had to explain an expert's theory to him. I could write a lot about expert witnesses here, but perhaps another day. On the morning of the trial, while I was preparing in the office at 3 a.m., one of the partners, Oscar, came into the office. He worked very little, but made his money in big lumps when he tried a case. When he was working, he often started before dawn, when he was most awake.
He asked me when I had gotten there that morning and I said I had never gone home. He asked me if I was nervous and I said no, I was too busy trying to figure out what to do. He told me go home, get some sleep and to get nervous or I'd be no good to anyone. Being nervous is a good thing on trial so long as you keep it in check. It is motivating and keeps you in that zone you need to be in to come up with arguments and retorts you might not have thought of if you were completely relaxed or unworried. Oscar had himself had told me a few stories of his early years of practice which helped me understand that being nervous came with the territory. As well known as he was in his field then, he had told me that when he had his first trial he pulled over on the side of the road on the way home the first day and puked. The first time he had a medical malpractice deposition (where you get to examine the other side under oath) he was so worried he repeatedly canceled it.
And, I was a little nervous going in. But, truth be told, despite my lack of experience, it wasn't all that much either. Not that I don't get nervous on trial, but I have known since school days that at least relative to other people, I am fairly calm. That may be part natural disposition and it may be self training I did back in high school when I first contemplated how you could react to things without freaking out. I was very influenced by eastern philosophers (I'll include the ancient Greek stoics) even then. I do believe there are limits to their claims and that like most every philosophy, you should take what works for you and chuck out the rest. But I think it is pretty clear that training and focus can help us to relax in tough situations. I've failed at it a few times in my life, but I'll leave those for another day too.
What was true then is still true for me when trying a case. The moments I feel a little nervous are when I stand up to meet the jury in what is called voir dire, or jury selection, when I stand up to do my opening and when the verdict is coming in. To be fair to myself, I think it is pretty normal for attorneys to be most anxious at those times, as we are when we are beginning just about anything.
I had not the first clue how to pick a jury. Oscar sat down with me to teach me, one of the few times he ever intentionally taught me anything legal related (he did give me one piece of child raising advice I took to heart and have passed on to others - when it comes to music, sports or education, there are no limits, within reason of course, to spend on your child). But, like with Gibbs on NCIS (I admit to a non-fatal addiction to the show), you learned by watching him. He was not the attorney to go to for technical legal information or even simple things like closing a real estate deal. The intentional bread and butter legal training I got from Felix, who was very organized and deliberate and more of a friend. He was delighted he had a young attorney who would work endlessly (hard to believe, but I would then) and could write well. I know this because his wife told me. I rarely see him anymore - once every few years, but at the time we were very close. He was a very cranky guy when I met him, as his partner was involved in a major case of national proportions and not bringing in money in the meantime. Between my taking some load off him and the big case ending soon after I arrived, he got to be a lot more fun. Oscar was almost always entertaining, but also dangerous, and he could be both a little arrogant - maybe deservedly so - and frustrating, because he was very absent minded - worse than me - and that's very absent minded. He once told me there wasn't any place in the firm for two absent minded attorneys and he was there first. I told him the difference between us was that when I lost or forgot something I knew it when it came up, but with him, it was as if it never existed.
I had actually worked there as a law school clerk on their big case before I was admitted and a paralegal who had a crush on me (I know, that's hard to believe now, you bastards, but go with it) and a senior attorney who liked me well enough told me that Oscar was offering me a job and to come in and start working. I was surprised because he didn't know me very well, but I did. My first memory is the paralegal handed me a file and saying "work it up." When she left the room I squeezed it a few times as a joke to myself, because I had no idea what "work it up" meant. I drafted some papers and when I left almost 4 years later, they had not even been typed up yet. Yeah, it was a little crazy. At the end of the first week I asked Oscar if I could speak to him privately. He said, "Sure." I said, I understood he was offering me a job. He looked at me kind of funny and said - "I did?" He hadn't, but being him, hadn't even been curious why I had been around all week. It wasn't a large office and he had to notice. But the paralegal and attorney knew what they were doing. He added, "Okay, welcome to the family." He then gave me a salary that would depress an assistant grocery bagger. But I was elated.
As talented as he was, he had some personal problems back then, and caused a lot of trouble for himself and others. At heart, he is a good person and despite that he was kind of up on a pedestal compared to the rest of us I recall once when I stood up for myself after he made the mistake of blaming me for what was really his fault, he sincerely and unfortunately endlessly apologized for a day. Whatever his faults, he was also incredibly charming and a brilliant trial attorney with a natural charisma unlike I've seen with any other attorney. When you watched him, you learned by osmosis, though you really could not imitate him (some try) without looking foolish because you didn't have his personality. Once I recall him getting angry with me because I didn't say something to a jury he wanted me to (too long ago; no idea what). It would have been a disaster if I had. I wasn't him and would have looked like a little boy putting on his father's clothes.
It took me a while to learn how to get along with jurors, to ask them personal questions without pissing them off, and even to get them to like anything about me. This is where learning to be yourself comes in handy. After a few years I started to get creative with it and have fun. Most attorneys follow some well tested scripts we all learn. I pretty much do too and try and to get the panel to laugh a little. But, I've developed some lines of questioning that are my own and I think are pretty good because other attorneys who have opposed to me in selection have asked me if I minded if they used them. Why would I say no? They would just do it anyway. You don't get to copyright this kind of stuff and we all borrow or steal from one another. Nowadays, though I don't try many cases, I notice my grey hair and craggy face gets me a little more respect with jurors. I'm hardly an old man, but there is something to getting older that works (occasionally, anyway). Good thing because almost everything else about aging is not so much fun and most judges could care less.
In my opinion attorneys have too many rules about what jurors they will accept or challenge. There are even unofficial racial and ethnic rules, believe it or not, and many attorneys still go by them. Most are ridiculous although I've had a couple of trials where I think race played some role. On one of my next trials I called Oscar up during a break in the selection process and asked him what he thought about my taking on the jury the wife of an insurance adjuster. He said don't worry about the stupid rules. If you like her and more importantly, think she likes you, take her. I've followed that ever since.
In this first case, my memory about jury selection is very thin. I know I wasn't any good at it. My adversary was a very serious middle aged man who had a reputation for being gruff. I remember his name but will call him Bob. Actually, he was really nice to me, and I told him after the trial I thought he had gone easy on me and appreciated it. When we had selected six jurors and two alternates I felt that I had lost the jury selection aspect of the case - which might be the most important factor. There was one man in particular I felt really didn't like me - I'll call him Roy. Why had I left Roy on the jury? Mistake.
When we began the trial I didn't know where to sit and Bob had to tell me. I had my clients, husband and wife, sit next to me at the table, which you really don't do either, but I didn't know better. The judge was a fairly kind man, perhaps in his late 50s, early 60s at the time. Many years later I bumped into him and reminded him of the trial. He was elderly then, a semi-retired referee, and had no memory of it, of course. I remember it because it was my first. It was one of many for him. He appeared to know my adversary well at the time, but he was fair and I have no complaints.
The first real opening I ever heard in my life was the one I gave. That's not a good idea, let me tell you. I know I was bad, perhaps terrible. When it was over Bob asked the judge if he could make a motion outside of the presence of the jury. When they left the room he said that although it was highly unusual, he was making a motion to dismiss the case after the opening. There just wasn't sufficient reason to go forward. I was mortified. Was I that bad? I don't think I said anything in opposition. The judge mulled it over and then said, "It was inexpert. . . " Now, remember, my clients were sitting right next to me. All I could keep repeating to myself after the first few words were, "Please don't know what 'inexpert' means. Please don't know what 'inexpert' means." Then he finished his sentence with ". . . but I think there is enough to go forward." There are no atheists on trial. Thank God, I thought.
Oscar had told me to call the defendant dentist as my first witness. I did. Fortunately, though obviously smart enough to become a dentist, he was socially inept and a strange, pompous man. Honestly, and I know this is politically incorrect to say, but he came off almost "retarded." However badly I must have looked to the jury, I was pretty sure he did worse. My own expert did pretty well, and at least said the magic words that the judge needed to hear so I could go forward with the case. The last witness was the defendant's expert, another dentist in the area with a lot of experience on his resume. He was not contentious at all (some foolishly are, trying to play lawyer). When I crossed him, I asked him the key question about something the defendant had done during treatment - "Was that good and accepted dental practice?" Of course he was going to say "yes, it was," because experts almost always help the side that is paying them. But he said "No," which flabbergasted me. Thankfully, I had at least enough sense to move on, pretty sure that the judge and the other attorney weren't even listening. Later I told Oscar what had happened and he instructed me to order the minutes from the reporter to use the next day so I could read it to the jury. If I read it, everyone would know it was true, rather than if I just told them it. I had not known that.
Bob summed up, telling the jury that this case should have been in small claims court. He was probably right. The dentist had treated her badly and screwed up on her dentures and maybe caused her a tiny bit of pain. But, this was a malpractice case in the New York Supreme Court. It wasn't, he said, worth anything. Essentially he was saying that I had wasted everyone's time with this case that was 17 years old. I knew the judge, nice as he had been to me, agreed.
I got up to give my closing with no small amount of dread. I had that one page of transcript with me, which I knew would at least keep the judge from dismissing the case, something he was more likely to do after the testimony was in than at the beginning. Unlike with the opening I had actually seen a few other summations before, but there did not seem like there was anything here to get a jury whipped up about. And, I generally knew I had to remind the jury what they had heard and persuade them to give me a verdict after the judge instructed them on the law. Don, whose comments sometimes now grace this blog, had just started with the firm and was in the courtroom. He later told me I was so befuddled I reminded him of the television character Columbo - NOT WHAT YOU WANT TO HEAR AFTER YOUR FIRST TRIAL! But, I'm sure he was right. I couldn't find any of the documents admitted into evidence that were laid out behind me on the table to show to the jury without rifling through them like a Woody Allen character on a first date and for some reason I kept slapping my forehead, as in "Oh, I almost forgot." (I guess that may have brought on the Columbo reference.) I'm not exaggerating this. I was really bad.
Roy, the juror who didn't like me, had frowned the whole trial and was sitting in the front row right in front of where I was standing to sum up. Almost every juror I have ever had stares blankly during the case to show their dedication to impartiality. But Roy was glaring at me like I had showed up to his wedding in lederhosen with a pinwheel hat on my head and carrying a hog under my arm. I finally read to the jury what the defendant's own expert had said. I could tell with a glance that Bob and the judge were surprised. They really hadn't been paying attention when it happened. I started to finish up, to tell the jury the the terrible ordeal my client had suffered (it was really nothing). Would any of it matter? It really was a silly case.
And then something amazing happened that taught me forever that you really just never know with who you pick for the jury. Roy stopped glaring at me for a second and a tear formed in his eye and trickled down his face. What? I kept going, haphazardly I'm sure, and finished with a humiliating statement that must have been plenty obvious to the jury, and which Oscar had instructed me to say, because you can only get away with it once - I said it was my first jury trial.
After the judge did his thing the jury went out. My clients, who had done okay on the stand, and were also not oblivious to my lack of legal sophistication, came up to me and said to me in a very heartfelt way that whatever happened, they thought I did a fantastic job and given it my all. I really appreciated it. Bad as I was, I had done exactly that - given it whatever I could.
The judge and Bob were talking, literally wondering out loud why it was taking the jury so long to come back with the defense verdict. Well, they had been nice, but I guess I couldn't ask them to make believe for my clients' sake. It was almost certainly going to be a defense verdict and we all knew it. Even if I had some facts and testimony on my side, what had happened was so de minimis, I was almost worried the jury would give the dentist money for wasting his time (not that was an option for them).
You sit there and you go over what you did and what went wrong and what could have been better. Did I come across sincere? I hoped so, but you don't really know what other people are thinking anymore than I knew what Roy was thinking.
Finally, the jury came back. It seems like it takes forever for the foreperson to give the judge the note, for the judge and the clerk to read it, and then to give it back to the foreperson so the clerk can ask him to answer the questions. In order to break the tension I always pre-mark on my verdict sheet the answers which mean I lost so if it happens, it's as if I already knew it. I'm not saying that is all that rational but it does seem to work a little. Now, the clerk asked the foreman if the defendant had committed malpractice and the foreman said "Yes." He asked him if it was the proximate cause of my client's injuries (laughable) and he said again "Yes." I was elated but dumbstruck at the same time. I had won.
The clerk asked for the amount of damages and the foreman said "Five thousand dollars." I was green, but I wasn't an idiot. I knew that had to be one of the smallest verdicts the court had ever seen since I had been practicing anyway. But, it was probably $4000 or so more than my client should have gotten in the real world. At least it paid our expenses and left a little over.
So, all's well that ends well, right. I went back to my office. We were all so sure I was going to lose that the head secretary, who was about 20 years older than me, had jokingly said that if I won I could fondle her heaving breasts. I called her into my office when I came in and after doing the requisite sad face, told her the bad news for her. I didn't really touch her but made believe for a second or two that I intended to collect, just for the laugh. Then I told the office and they were appropriately gleeful.
It wasn't much of a victory but a win is a win. I did lose my very next case I tried though I was much better that time and had even gotten a compliment from the judge after it was over. I had been feeling sure I was going to win, so he also told me that I was the only one in the courtroom who didn't realize what a liar my client was. Okay, you do talk yourself into believing in your client because, within reason, it's your job and also human nature.
But that would be a month or so later. As for now I was 26 and had just won my first jury trial. I have known some attorneys who lost their first case and have trouble trying another; sometimes they never do but have successful careers anyway. I didn't have to go through that challenge and I'm grateful.
Oh, they'll be more of this autobiographical stuff next year when it is 30 years. 30 years. Yikes!