Lawyers Practice Law too Much

Pretend you want to find out if running drills or game experience is more beneficial to a basketball team. You decide to run an experiment using two basketball teams (Team-A and Team-B).

Team-A does drills every day for a month, but never allowed to play any actual games. Team-B plays a game every day for a month, but not allowed to do any drills. Which team is likely to win when they play at the end of the month? The smart money is on Team-B, the team with game experience. There is no substitute for playing the game.

As lawyers, we are sometimes too much like Team-A. We end up mostly practicing (litigating) without playing enough games (trial). This trend has multiple consequences.

The most obvious is that lawyers are not getting enough trial experience, especially young lawyers. Just like a basketball team that does not play actual games, fewer and fewer lawyers have the ability and experience needed for an actual trial.

But practicing without playing the game produces additional consequences for lawyers. It has changed the way we litigate and how well we prepare for trial. Here are some of the ways playing the game (going to trial) helps us litigate better:

  • More effective discovery – We learn what works and what does not work with juries. We take better, often shorter, depositions and ask better questions.
  • Open and courteous – We learn that being completely open and courteous with witnesses, the jury, and opposing counsel is far more effective than the alternative.
  • Focused liability theories – We learn to resist throwing everything but the kitchen sink at our opponents, and instead try our best case in a focused and comprehensible way.
  • Maintaining credibility – We learn to maintain credibility by claiming only our client’s real damages instead of every claim available under the law.
  • Better deposition questions – Have you ever gone to impeach someone at trial only to find out your deposition question was not as air tight as you thought?
  • Relevant deposition questions – How much of your precious time on earth has been spent listening to irrelevant questions at depositions? How many have you asked yourself?
  • Less objections – We learn that juries do not trust or like objections. Instead of objecting next time someone testifies to hearsay, make them admit to the jury they testified beyond their personal knowledge. Then they will look unreliable, instead of you looking scared that the jury heard evidence they’ve already heard.
  • Lower settlements – Fewer good jury verdicts = lower settlement offers.
  • Plaintiff lawyers take the wrong cases to trial – A wise man told me the worst thing personal injury lawyers do is settle their good cases and try their bad ones. Many of us only go to trial when we are forced to on a difficult case. We underestimate the value of our good cases. The result is that trial results are skewed in favor of the defense.

So how do we get to trial more? The simple answer is we settle less; not as easy as it sounds. We all have to resist a lot of psychological pressure to settle. When I settle a case I should not have, I get “settlement remorse.” I have learned a few ways to avoid settlement remorse that I hope to share in the future.

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