Podcast - Parting Thoughts: Be a "Peddler of Common Sense"

Dan Small: After more than 70 episodes, you'd think I'd be running out of things to say. Not really, but there comes a time when all good things must end. Plus, I'm always saying that lawyers should keep things short and simple, and I violated that advice enough already. So it's time to wrap things up. What do I have to say as a farewell message? Basically, what's already been said in many different ways. Be prepared. Be organized. Streamline your case. Know the rules and follow them. You're not there to show off, you're there to persuade. You're not there to sing and dance, you're there to tell a story. You can't win if the jury doesn't understand your case. You can't win if the jury doesn't follow the story. You need to make sure the jurors are listening.

Much of the advice may seem simplistic, sometimes absurdly so. Of course you want to persuade the jurors. Of course. Of course you don't want to confuse them or annoy them or offend them. But the fact is lawyers often get so wrapped up in their own stuff that they don't follow even the most basic common sense principles. Don't let it happen to you.

Let's take the advice that you should try to tell the story in chronological order whenever possible. That seems obvious. But a friend of mine, who's a judge, once presided over a trial in which one of the lawyers failed to do exactly that. The facts of the case were somewhat complicated, and each witness could present only a small portion of the story. To make matters worse, the lawyer frequently elicited testimony that seemed to come out of the blue, without any effort to tie it to the larger picture.

OK, all right, sometimes that happens. Trial testimony may be a little disjointed no matter how hard you try. But that's why we have chronologies, demonstratives and closing arguments. But instead of pulling everything together, this lawyer's closing was all over the map. He spent a lot of time exhorting the jury in general terms. He argued about this and that. He wasted time on trivial issues. He flashed a lot of anger when talking about the other side. But he never got around to telling a clear, chronological story — a basic description of the facts. After the verdict, the judge spoke to the jurors. One juror quickly raised his hand. "Can I ask a question? Lawyer X didn't go through the facts in chronological order. Was there some reason for that? Are they prohibited from doing that?" Well, that's a pretty good question. Not only are you not prohibited from it, you ought to do it always, every time.

Now, to be fair, that lawyer's client won the case. They deserved to win based on the facts. But that's all the more reason that a chronological description of those facts should have been the centerpiece of the entire presentation.

In another case, in front of the same judge, the closing arguments in a complicated matter were surprisingly short and perfunctory. Afterward, the jury was out deliberating for several days. When the judge went back to the jury room after the verdict, he was amazed to see large sheets of paper, covered with black marker, taped up on the walls. On the paper were chronologies, lists and outlines. One of the jurors remarked, "The lawyers didn't really go through the evidence in their closings, so we felt we needed to do it ourselves." Good for them. They took their responsibilities seriously. But what in God's name was the lawyer doing not to do that for them? They never should have been put in that position. It's the job of the lawyer to go through the evidence, to explain what happened and why it mattered. Failing to do that may not be legal malpractice, but it's pretty close.

That's why my advice is sometimes very basic. If you use common sense, it will take you a long way. When I was in the U.S. Attorney's office, someone gave me a cartoon, I think it was from The New Yorker, and it showed a fellow pushing a cart and on the cart was a sign: Peddler of Common Sense. Nothing could be a greater compliment. Be that person. Be that peddler of common sense.

Before I close, I want to make two final points.

First, trial work is, by nature, a competitive and combative enterprise. Nobody wants to lose. Some lawyers, such as prosecutors and other government lawyers, have a special obligation to do justice, not simply to win cases. But all lawyers have a duty to uphold the law no matter what. Never let your competitive instincts override your legal duties or your ethical obligations, or, for that matter, basic human decency. There are plenty of things more important than winning.

Second, it takes discipline and a lot of hard work to be an effective trial lawyer. That's the bad news. The good news is that discipline and hard work will take you a long way. It's pretty easy to learn. The basic skills and even the advanced skills aren't all that difficult to master. It takes natural talent to be a truly great trial lawyer. But learning to try cases isn't nearly as hard for most people as say, learning to speak fluent French or to play the violin. As Mae West supposedly said, "I never said it would be easy. I only said that it would be worth it."

And let me add one final thought. In my recent ABA book, Lessons Learned from a Life on Trial, I talk about the work that I've done over the last more than a decade with lawyers and judges in Uzbekistan, trying to help them on a path towards reforming their judicial system. Nothing has given me a greater appreciation of how lucky we are to be trial lawyers in the U.S. justice system. We should always remember that that system is only as good as those who participate in it and help it to be the great system that it is.

Thanks for tuning in, and good luck in trial.