Author: sgray

There is one thing that separates good from great.

Grit.

All great trial lawyers have it.

“Great trial lawyers did not become great overnight. They are gritty individuals who often lost in their early careers and did not lose sight of the long-term goal of improving and learning from each loss. They were not easily deterred or discouraged by early setbacks and failures. They were willing to travel the long road and exert enormous effort to become great trial lawyers.”

-United States District Judge Mark W. Bennett (Ret.)

Great trial lawyers are “not afraid to die on a treadmill.”

I don’t know where grit comes from, or why some have it and others don’t.

But it’s real.

And it makes a difference (and not just for trial lawyers).

You are standing in the middle of the courtroom.

The jury is staring at you. And the judge is waiting.

What you decide to do next matters.

And it is informed not just by the few weeks of preparation you did for that case, but by that preparation AND who you have become as a trial lawyer and a person.

When you hire me, you don’t just get a trial lawyer for your case.

You get me:

Nine years in and around courtrooms.

The lessons I learned from my losses.

And my wins.

Every training I’ve attended.

All the books I’ve read.

My community.

My mentors.

Who I have become as a trial lawyer.

And who I have become as a person, a husband, and a father.

Every decision we make is informed by our experiences.

So if you are a young lawyer, seek out the experiences you want/need to accomplish your goals. If the job you are in or considering will not help you get those experiences, make a change.

Never forget this:

Early in your career, prioritize getting the right experiences over money.

You and your clients will be better for it.

If you try cases, only five things matter.

Everything else is a distraction.

1. Jury Selection

2. Opening Statement

3. Direct Examinations

4. Cross-Examinations

5. Closing Argument

That’s it.

Effective trial lawyers approach everything that they do with an eye towards those five things.

There really is no need to get lost in the pretrial “games.”

Just prepare for trial.

The other side will take notice, and your client will be better for it.

“You’re doing too much; it’s just a bench trial.”

Wrong.

A bench trial is still a trial: opening statement, direct examinations, cross examinations, and closing argument.

Judges are people too. They make decisions just like jurors, so it is in our client’s benefit to approach bench trials the same way we approach jury trials.

As such, with the exception of jury selection, the preparation and presentation for a bench trial should be the same as a jury trial.

And the other side will not be prepared for it, because they will expect that you will approach the trial like it’s “just a bench trial.”

(Bonus: The Judge will appreciate your effort and their verdict may reflect that.)

Sorry, ChatGPT.

You can’t replace the trial lawyer.

There will always be a need for those willing to stand up in a courtroom.

For those who advocate on behalf of others.

And for those who bring humanity to our justice system.

There will always be a need for the trial lawyer.

Tools like ChatGPT will help the trial lawyer, but they will never replace the trial lawyer.

Because the law needs people.

“The law is an amazing tool, but it has limits. Good people, on the other hand, don’t have limits. The law is not in the business of forgiveness or redemption. The law cannot compel us to love each other or respect each other. It cannot cancel hate or conquer evil; teach grace or extinguish passions. The law cannot achieve these things, not by itself. It takes people—brave and strong and extraordinary people.”

-Preet Bharara

“What about the next person?”

A few weeks ago, a family member was injured.

On the way to get a coffee, they tripped and fell on uneven sidewalk.

It did damage: bleeding, bruising, and a concussion. And there is still a scar.

It is a highly trafficked area. And, after investigating, we learned that multiple people had been badly hurt by that same uneven sidewalk.

Ridiculous.

So I asked the family member for permission to pursue it.

But there was hesitation.

Pursuing a personal injury case is not an easy decision. You expose yourself to scrutiny, and you have to deal with attorneys.

It’s a pain.

But what is not fair is the stigma that goes along with it:

You become one of “them.”

You know who I’m talking about: the people who file lawsuits.

The people responsible for rising healthcare and insurance costs.

The people trying to get something for nothing, like in the McDonald’s Coffee Case:

A 79-year-old woman, who suffered 3rd degree burns in her pelvic region, hospitalized for 8 days, and 2 years of medical treatment because McDonald’s did not take safety seriously.

That’s right: McDonald’s knew their coffee was too hot; their own documents showed that more than 700 people had been burned by their coffee.

And when she tried to settle her case for $20,000 to cover her medical expenses, guess what McDonalds did?

They refused.

Frivolous lawsuit, right?

When my family member hesitated, it was not because they did not want to deal with me (despite that being a completely legitimate reason 😜). It was because of Corporate America’s (i.e., tort reform’s) false messaging.

So I asked them: “What about the next person?”

And they agreed to let me take a shot.

One week after I got involved, the sidewalk was fixed.

There will be no next person.

After a frustrating mistrial last fall, a colleague sent me an uplifting note reminding me why we do this work:

“It wasn’t the FDA that brought down big tobacco, it was trial attorneys. It wasn’t Congress that on its own put in regulations about tractor-trailer drivers—it was trial attorneys beating the hell out of trucking companies in the courtroom that got those laws passed.

The government does not have the resources to protect the public or the consumer—we are it. What we do should not be looked down upon, but should be honored. Are there bad apples? Sure. But the majority of us go to war every day, not because we are motivated by lining our pockets, but because we care about our communities.

This is a fight we need to win—it is a fight that will be hard, long, and like any war, we will have losses along the way. But at the end of this fight, we will win because the law is on our side. Society has just lost sight of why tort law exists in the first place—it is there to protect, to make things safer, to not shift burdens, to hold those who make bad decisions fully accountable and responsible for those bad decisions.”

We are safety attorneys.

“If a sign at the entrance to a zoo says ‘come see the elephant, lion, hippo, and giraffe,’ and a temporary sign is added saying ‘the giraffe is sick,’ you would reasonably assume that the others are in good health.” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (Roberts, J.).

That is the analogy Chief Justice Roberts used when explaining the term: expressio unius est exclusio alterius, which means “expressing one item of [an] associated group or series excludes another left unmentioned.” Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 80 (2002).

I have used Justice Roberts’s Zoo Animal analogy when making a statutory construction argument, not just because it was fun, but because it helped me make my argument.

Effective writing is when you communicate your argument clearly so that the reader does not have to work to “get it.” And analogies, like Justice Robert’s Zoo Animal analogy, help with that.

(Analogies also help when speaking to juries, but more on that in a later post).

Takeaway: Analogies help, so use them.

Last fall, Ryan Walker and I tried a personal injury case, and when moving an exhibit into evidence, the Judge unintentionally gave us one of the best compliments we have ever received:

“Commonwealth (aka, the Prosecution) Exhibit 1”

Liability (and the defense’s failure to admit liability) drives damages.

Why did a Texas jury come back with a $337.5 million compensatory and $7 billion punitive verdict against Charter Communications last summer for the murder of an 83-year-old woman in her home by a Spectrum cable technician?

Why did a Connecticut jury come back with a $965 million compensatory and $473 million punitive verdict against Alex Jones and his company Infowars last fall for falsely claiming that the Sandy Hook mass shooting was staged as part of a government plot to seize Americans’ guns?

What drove those numbers? Just the damages? OR the defendant’s conduct (in addition to the damages)?

Harry Plotkin, one of the nation’s most respected trial consultants, explains: “How else can you explain the very real phenomena that civil verdict awards . . . tend to be much lower when liability is admitted and exponentially higher when liability is disputed in trial? Part of the reason is that admitting liability seems so responsible to jurors. But the bigger reason is that when jurors don’t hear WHAT a defendant did wrong, they don’t get upset.”

Your client is at trial because of the defendant’s negligence. Make sure the jury understands that. Only then will a full and fair verdict be possible.

As Judge Learned Hand explained nearly 100 years ago, “Juries are not leaves swayed by every breath.”

Take a second to think about that.

Yes, how you frame a case matters. Yes, the evidence the jury hears and sees matters. And, yes, the specific wording you use matters.

But, to win at trial, you do not have to be as polished as Alan Shore:

To win at trial, you have to be you.

You have to care about your case.

And you have to trust the jury to get it right.

One misstep or wrong word will not lose the trial because:

“Juries are not leaves swayed by every breath.”

Jonathan Haidt, a social psychologist, explains: “The mind is divided, like a rider on an elephant, and the rider’s job is to serve the elephant.”

The rider represents reason, and the elephant represents emotion.

Despite our best efforts in the courtroom, the elephant decides the case:

“Perched atop the Elephant, the Rider holds the reins and seems to be the leader. But the Rider’s control is precarious because the Rider is so small relative to the Elephant. Anytime the six-ton Elephant and the Rider disagree about which direction to go, the Rider is going to lose.”

The rider cannot control the elephant. As such, when it comes to making decisions, we (including judges and jurors) subconsciously make decisions based on emotion and then support those decisions with reason. I have seen this time and again in court.

So what does this mean for the trial attorney? To get results in court, you have to be mindful of the emotions in the case and capitalize on them. And if you don’t believe me, listen to Gerry Spence:

“I have said I have no quarrel with the intellect. These words were born of it. I simply do not wish the head to rule every aspect of the human experience, nor feelings to be reduced to some unsavory attachment to the person, something akin to original sin. Moreover, I am not a fan of flabby sentimentality that by its excessiveness mocks honest feeling. But be assured—despite all their protests to the contrary—the decisions of most power persons are rooted in the very feeling they deny. A simple and universal process is at work. We feel first, then decide accordingly. Our decision may be wrong. It can even be spiteful or evil, and we will announce our decision only after we have smeared it with the stuff of the left lobe—with brain-laden, unemotional, cold, linear reasoning. The feeling came first and it was at the feeling level that the decision was made.”