“We’ve got hundreds of lawyers here who can write great briefs. I need someone who can try a great case.”
If you haven’t heard those words spoken, then you haven’t walked in the corridors of power at a large law firm.
Here’s today’s thesis: Those words — that your firm has plenty of great brief-writers and needs someone who can try a case — are terribly misleading, terribly deceptive, and terribly informative.
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Point one: The words are terribly misleading.
I’ve seen the quality of written work at many, many law firms.
A ton of firms apparently don’t have any lawyers who can write at all, let alone well. And many firms have hordes of lawyers who can write in “big firm mediocre,” but can’t produce briefs that get up and dance on the reader’s desk. Few people have the ability to write truly persuasive briefs, just as few people have the ability to try truly great cases.
So your firm doesn’t have “hundreds of lawyers who can write great briefs.” What your firm has is “hundreds of lawyers who have written a lot of briefs.”
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That’s not the same thing, though it apparently feels the same to many senior partners.
As the number of cases that are tried plummets, and the number of briefs filed stays more or less constant, brief-writers will increasingly appear to be a dime a dozen, while trial lawyers will increasingly become a treasured commodity.
Point two: The words are terribly deceptive.
The senior partner who says he needs someone “who can try a great case” doesn’t need that at all. How would the senior partner know if one of her colleagues could “try a great case”?
Most partners have not observed each other at trial, so partners don’t know personally whether their colleagues are great trial lawyers. In fact, many lawyers accumulated their trial experience working as government employees before the lawyers even landed at their firms. It’s hugely unlikely that anyone knows whether the former prosecutor (or public defender, or trial lawyer at the DOJ) is in fact any good at trial.
(Everyone knows, of course, that the former prosecutor says that he’s a great trial lawyer. I won’t rant on that subject again.)
When the senior partner says that she needs someone “who can try a great case,” what she actually means is that she needs someone with enough trial experience that the senior partner can convince a client to entrust the client’s trial to the chosen lawyer. The senior partner doesn’t need a “great” trial lawyer; she needs “any lawyer who has tried a few cases,” which is not at all the same thing.
That breed — lawyers who have actually tried a few cases — are in increasingly short supply.
(You should hear the internal debates at law firms about how they’ll convince clients that the firm has great trial lawyers. I’m making this conversation up, of course:
“We’ll do great at this beauty contest. No one can match our trial experience! We’ll have Emma with us! She just tried that big case two years ago! We’ll explain the number of cases we’ve tried.”
“Emma’s tried one case in her life. I suppose it was a long trial. Maybe we should talk about ‘number of days we’ve spent in trial,’ rather than ‘number of cases we’ve tried.'”
“That’s not a bad idea. Let’s say that Emma has ‘spent more than six months of her life in trial.'”
“Didn’t Emma lose that trial?”
“It was unwinnable. The judge was against us.”
“Okay. But what do we do if the client asks about our win/loss record?”
“We won it on appeal!”
“What if the client won’t fall for our evasions?”
“Shoot! Do we have anyone who’s actually won at trial?”)
So the senior partner doesn’t need a lawyer who can try a great case; she needs a lawyer who has tried a few cases — period.
Point three: The partner’s bloviation is thus terribly informative.
If you’re a litigator — even a great one — who has done only the usual stuff during the course of a career (enduring document discovery, writing briefs, taking and defending countless depositions, arguing motions and the occasional appeal, and settling everything before trial), then you will, over time, look an awful lot like the rest of the pack.
But, if you’ve had the good fortune to have tried even a handful of cases in your life, you’ll increasingly stand out over time.
(You should hear the internal discussions at law firms. I’m making this conversation up, of course:
“Let’s bring Ernie to the beauty contest! He was an assistant U.S. attorney. He’s tried cases!”
“He’s been with the firm for 30 years now. Was he really an AUSA? When was that?”
“Of course he was an AUSA. From ’78 to ’82! He tried a ton of cases.”
“Is trying cases like riding a bicycle? Has he tried any cases in the last few decades?”
“I doubt it. He handles big cases, so they don’t go to trial. But the client will love to have a former AUSA lead the trial team. Let’s see if Ernie’s free for the beauty contest next week.”)
It’s been obvious for more than a generation that trial experience is both treasured and in short supply. You personally, and others trying to sell your firm’s litigation expertise, will become increasingly desperate to point to lawyers with trial experience. That’s really the lesson of the senior lawyer’s bloviation: Trial experience transforms a litigator into a precious (and rare) commodity.
So, if you have the chance to get trial experience, get it. You may not live the high life when you’re acquiring that experience, and your student loans may feel a bit uncomfortable, but you’ll be establishing a credential that others won’t be able to match, and that will prove invaluable over the course of a career.
If you have that opportunity, don’t lightly pass it by.
Mark Herrmann is Vice President and Deputy General Counsel – Litigation and Employment at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].