by Kenneth P. Nolan

That’s why you became a lawyer -- to try cases, staring the retired Con Ed lineman in the eye as your voice soars, shaking doubt from his suspicious mind. This is your dream. Not money, not fame, but the power of your personality, your style, your words so eloquent, so logical, so persuasive that these now wonderful jurors nod unconsciously, slight smiles stealing across weathered faces, eyes meeting yours. Yeah, you’re right, I see ya point. I’ll vote with you.

Ambition is strange. Sure we want our 15 minutes of fame and a four bedroom with a Friday evening glass of pinot grigio and a plate of linguine vongole at Vilardo’s Ristorante. But these are not essential. For it is knowledge of self-worth that defines success, that generates respect, admiration, even fear among your adversaries. She can try a case, you better be careful, she’s good, damn good, they whisper in the marbled halls. If your prowess results in a seat next to Oprah or a sweeping Victorian home on the lake in Eagle River all the better, but it’s what you know about yourself that brings pride, swagger, even happiness to our exhausting lives.

Unfortunately perception often trumps reality. But when we look in the bathroom mirror on those bleak, misty mornings and hear the moan of the foghorn from the Narrows, we know what is truth, what is lie. Husbands and colleagues may believe our eloquence and strategy were the linchpins for victory, but we recognize if venue, bias, the judge were the real reasons for triumph. Yet knowledge that we can cross an expert, deal with a hostile judge, sway a motley bunch of bored jurors is crucial to our craft.

And this is the goal for all litigators, the ability to try a case. It distinguishes us from all other specialties and it permeates our work and lives. Lost motions, worthless depositions, unjust law are never fatal since our blunt response to any snide comment from our adversary is Tell it to the jury. Nothing inspires more fear than answering Ready when the judge asks if you want to select.

Of course to attain this skill takes time and experience. You have to struggle in the trenches trying the dog cases, the hit-in-the-rears, the misdemeanors, facing cynical jurors, clubhouse judges who smack you around. You start green, afraid, like I did--not even knowing where to stand in the courtroom, asking dopey questions, stumbling through, trying not to screw up. And then one day, the seasoned vet of too many trials with too many chins says, nice job kid, or good closing, and you’re on your way.

But this is the real world. Not always pretty and sometimes terribly tragic. And today it’s almost impossible to try a case. For those who do not comb grey hair, to step into a courtroom and learn this vanishing craft is most rare. The pressures from client, court, firm are to settle, resolve it peacefully with handshakes and lame jokes in a room with bone china coffee cups and a view of the skyline as opposed to the battered courtrooms with the stale air. The retired judge with the bad comb-over cajoles, pleads, begs even, just another $2500, your expert will charge you double at least and let me tell you young woman, juries are crazy, did I ever tell you the time... Your partners, friends laugh derisively, Allow a jury to decide? What are you freakin nuts?

A simple slip and fall is too expensive. Experts, witnesses, days selecting a jury and then waiting for a part and paying the orthopod 5 grand just in case. All for a 50 thou case. Take 32,500, maybe 35 after a jury is picked and go away. Even if you hit, they’ll appeal and the costs will eat whatever the jury handed you. Or if it’s a multi-million bad baby case and the insurer throws numbers that make you think. Never enough, but do you take the shot, do you? What if you get bounced, who’s going to take care of the kid and the mom with weary in her pleading brown eyes and despair in the dilapidated apartment with the giant flat screen screaming and the linoleum generations old. They deserve more, no doubt, but with their cut, they’ll say sayonara to the grimy 99 cent stores on Church Avenue and soon will roll the wheelchair into the Orlando sun.

For those who devote three years defending the bet-the-company case, the mantra is the same -- settle. Sure jurors mean well, but hell they read People and The New York Post and know more about Tom Cruise’s baby than Dick Chaney. Nice people and all, but c’mon. And ever present is the thought... if I shoot craps, my rep is mud and the client bids me and the many years of profitable billing adios. Instead of a big time rep, accolades and a corner office, I’m a shlub, earning a living, never trusted with another big one. Kicked to Of Counsel at 58 until I slowly fade away.

Even on the criminal side, trials are scarce. White collar cases are prosecuted vigorously, some contend too aggressively, with the threat of long prison terms a reality. Ask Bernie Ebbers or Jeff Skilling. Facing decades, a plea of fines and a short term in a country club prison is very enticing. Sure you were indicted just so the prosecutor could plaster her puss on the evening news and you could definitely beat this phony rap, but let’s just suppose you don’t. Then they’ll throw the book at you. So let’s see what the deal is, we can always say no.

Economics also has a role, not only the escalating cost of smaller cases, but trials don’t generate the funds needed to run the megafirms. Discovery is the cash cow. Ivy League educated associates by the bushel can be kept busy for years examining warehouses filled with documents, peering into the heart of computers which has somehow stored every dirty joke or incriminating email. And with hundreds of millions at risk, isn’t it logical to sit down like civilized individuals and find a middle ground. For as the television character Stark notes, Trial is war, second place is death. When you settle, no one dies.

So the trial has vanished as a means to resolve disputes. Gone like the stickball, stoopball and other games of my youth. Yes, I yearn for those times of laughter and carefree hearts, but they only reappear after a few cold ones with my childhood buds standing at the bar in Farrells. Then we glance out the plate glass window and see the yuppies and hipsters walking by and wonder who let them into our neighborhood.

But don’t despair ye who are young and idealistic. You can resist the pressure, march into the courtroom and bark at the judge, let the jury put a number on this one. It happens but not as often as years ago when law was a profession, when we were respected, when every town had an Atticus.

So you have to learn other skills which are more practical than the ability to transform the tiny, tired courtroom into a majestic temple of justice. These skills maneuver the case to a position of power so the other side makes the call and quietly pleads, you wanna talk about getting rid of this one. You maximize your strengths and emphasize your adversary’s flaws. It’s a chess game which always ends just before you look up, pause and state emphatically, Checkmate. Not as much fun as having jurors, court officer, judge stare with silent admiration as you transform this complex case and make it simple, compelling. Fun is difficult to find these days in the law biz.

These other skills are not new, been around forever actually, but today have become more prominent, more frequent since more trials are held on TV than in the courtroom. And my list is not exhaustive. I’ve probably forgotten a few. After all, if I was so smart, I’d be a partner at Goldman Sachs.

Strategy. My mentor Stu Speiser always preached to read and copy the jury instructions as soon as the retainer was signed. Know what you have to prove from day one. Not 18 months later after rogs are answered and depos concluded. Right now. Keep them in the file and review them periodically so you can shape your case to prove your prima facie.

For if you are aware what you have to prove, the investigation, the complaint, the rogs, the depos can be focused on eliminating that headache early which only adds authority and command to your position. Sure your strategy will change as the case progresses, but nothing worse than being on the verge of trial and the other guy asks, how you gonna prove notice.

Where you file is often the difference between victory and defeat. Venue is paramount. You often have a choice -- state/federal, which state, which county. Sure most defendants prefer federal court with judges from the world of corporations and country clubs. Plaintiffs usually love state court where judges crave contributions for reelection and where the primary qualification is years of handing out leaflets on street corners. As one clubhouse guy blurted to the bar judiciary committee when asked the customary question as to why he wanted to be a judge, I’m tired, tired of working so hard. He sat for nearly 25 years.

So review the verdicts, the jury pool, the judge’s CV, the nuances of the law. Not that you’ll get that far, but in negotiations you will be confronted with, No jury has ever awarded $8 million counselor. Your demand’s outrageous. Get real... You know that juries rule for defendant in 76 per cent of the med mal cases tried in this courthouse. Even within New York City’s five counties, where you file can be the difference between winning and losing, between a huge or modest verdict. If you cross the Verrazano Bridge from Brooklyn with its plaintiff friendly jurors to Staten Island with its traditional middle class conservatives, your demand decreases by one third. "You’re not in Oz anymore," Judge Gerry Rosenberg used to tell those unfamiliar with Staten Island values.

Know your client. I mean really know. Learn the sins that stain us all, walk into those closets and chase those skeletons into the bright blinding light. Eventually the past injuries, the emails detailing the malfeasance, that little stint in rehab will be revealed. Sit down and probe now, asking the tough ones all the while murmuring, no problem, don’t worry, it’s nothing. Be like the bored priest, heard it all and I can’t blab or I’ll get drummed out of the Bar.

Drag the info out, bit by bit, sit down time and again, joke, reveal your humanity, your imperfections, the time you were arrested for pot, spilled the drink on the fat boss’ fat wife, received the ticket for public urination. As the Brooklyn criminal court judge announces when he greets the hundreds for Quality of Life violations where we appear with our kids ticketed for underage drinking, it’s $25 going in and $50 going out. Build camaraderie, trust. So at the deposition, you’ll be ready, taking the sting out of the crucial question, watching your opponent’s arrogance deflate suddenly, the voice now hesitant, the pause long, the sigh audible.

Understand the law. Sounds simple, but we don’t always do it. Sometimes the case is a been there/done that. And we assume we know. How hard can it be, I’ve done millions of these. If it’s so easy and simple, do it. It’ll only take a half hour. If you don’t know the law, you might as well learn it early and thoroughly. As my golfing buddy Mike Stromberg reminds me when I hit one into the woods, why are you surprised, you’re not that good. The same applies to you.

Depositions are the new direct and cross. Books have been written about deposition strategy and technique. Wonderful, incisive articles appear daily in legal publications describing how to be successful. Not my job here. But a deposition is no longer just a fact gathering exercise. You have to impress your adversary so that if they test you at trial, you’ll kick some big ass butt. When I was younger handling an obstetrical malpractice case, the issue was whether the problems with delivery were the cause of the child’s disabilities. I deposed the pediatrician who cared for the child immediately after birth. Across the table was a very well respected lawyer who tried hundreds of cases. After the deposition, he nodded and said simply, you did a good job. I thought he was just being kind. But a few weeks later, he called and made a substantial offer which settled the case.

Again, you’re positioning the case for the innumerable settlement conferences before the magistrate, the judge, the mandatory ADR and myriad telephone calls to resolve the case, which is a fancy term for settle. To depose a witness effectively, do the following:

• Know the facts;
• Understand the underlying substance of the claim whether how to value stock options, how to remove a clot from the brain or how a vehicle rolls over;
• Prepare. Draft an outline, the security blanket we all need. Write down word-for-word the key questions so you don’t gum them up when your savvy adversary objects and then screams for a few minutes, trying to divert your attention from critical testimony;
• Have the witness explain authored documents, line for line. Don’t assume you know what was meant;
• Confront the witness with contradictions by using documents and past testimony;
• Be firm. Insist on answers to all questions;
• Don’t tolerate disruptions from your adversary; be patient and thorough -- don’t rush;
• Ask all questions even the dumb ones. For once, put your ego aside. No one believes the hype anyway;
• Follow up all document requests immediately. Hound your adversary until you receive what was requested;
• Depose all witnesses who may provide insight and explanation.

Since you don’t follow the real Ten Commandments, try the above. They won’t get you into heaven, but you might make partner.

Mediation. Ah yes, the new world of ADR. It’s here in its various machinations -- mandatory, voluntary. Take it seriously. The mediator and your adversary will. If you don’t want to discuss settlement, notify them in writing before the sit-down, setting forth your position, its rationale. No one will then accuse you of wasting time. Mediation is a career now. You will see some mediators a second and third time and they won’t forget a jokester who comes unprepared or is not serious about resolution.

If defendants want to mediate, I usually agree since this indicates they want to pay money which I have come to enjoy. Meet with your clients and discuss the merits of the claim, the value, the negotiating strategy. Make sure you’re on the same page. Sure the client agreed its value was only 100K two weeks ago. Now, however, her good friend Maria knows a co-worker whose 2nd cousin once removed received $7500 for a broken fingernail and don’t you think my case is worth $1.2 million.

Prepare written material, detailing both liability and damage information. Include a narrative, photos, excerpts from depositions, documents, corporate records, anything that assists in persuading the mediator that you’re right. Don’t worry if it’s admissible or inflammatory. This ain’t trial and the usual evidentiary rules don’t apply. Make your brochure readable, attractive and simple. Your computer can do all sorts of wonderful tricks with color, font, graphics. Not so hard to present a power point or some other interactive material. We live in a visual world. Think of the $1.65 billion those young geeks made by selling YouTube. Black and white is long gone. Print media is dead. Use the technology. If you don’t know how, ask your 12 year old. And show your finished product to some teens. They’ll be overjoyed to criticize your lame attempt and they’ll provide insight you never even considered.

Bring your client to the mediation. Let them hear the weaknesses, how they could strike out. Let them voice their anger, grief. Involve them in the decision to say no thanks, or to end the years of battle. Be professional. It’s not personal, Sonny. It’s strictly business, said Michael just before he put a bullet in the police captain’s brain.

Of course, as soon as you read this and follow all my brilliant suggestions, your adversary will never mention settlement and you’ll end up trying the case. Not the worst. My best verdicts are on cases that should have settled. Trial is sometimes the best and only way to resolve a dispute. Jurors always try to do what they perceive is justice. So plan for trial from the first phone call, but be aware that you may never get there.

In the past decade, our practice has changed dramatically. It is true that the trial is vanishing. Whether this is good I’ll leave to others. But it’s a reality and you must acknowledge and adapt. As the troubadour of my generation wailed in that piercing nasal voice, " you better start swimmin’ or you’ll sink like a stone..."