The Ideal Qualities Of A Trial Lawyer

By Robert T. Eglet, Esq.

I am often asked by young lawyers what I think are the most important characteristics of a successful trial lawyer…a broad question not easily answered with a simple, concise response. This often-repeated question has required me to engage in critical introspection as well as objective observations of those colleagues whom I believe to be exceptionally successful trial lawyers.

It is important to note that when I use the adjective “successful,” in this context I am not speaking of financial success. Indeed, some of the least “successful” trial lawyers whose paths I have crossed have made tremendous amounts of money. But money is not the measure of success for a trial lawyer. Many of the successful trial lawyers I have had the privilege of knowing have spent their entire careers as public defenders, civil rights lawyers or legal aid attorneys. It is equally important to note that I certainly do not profess to possess all or even most of the qualities that I attempt to describe herein. I am, like most people, a work in progress, continuously trying to improve as both a trial lawyer and a human being. Sometimes I succeed. Often I fail. The qualities described are aspirational. Goals for all of us who want to be better trial lawyers.

Visualization

If you do not know what your desired destination is, it is impossible to draw a map of how to get there. Seeing the outcome you desire, and believing you can achieve it, will provide the motivation to prepare as necessary to achieve your desired outcome. The first thing I do to begin my trial preparation is decide what my desired verdict is and then continuously visualize the jury returning that verdict. I visualize the verdict I want being read when the jury returns and work backwards from there.

The use of visualization is important for all aspects of your trial preparation. As you are preparing your opening statement, closing argument and direct and cross-examinations, visualize yourself knocking it out of the park. Continue to use visualization techniques as the trial proceeds before each argument or witness exam. Visualize it happening, and prepare in your mind for things that may otherwise be unexpected. This helps me prepare for the uncooperative or combative witness, as well as the objections that may need to be responded to or may require me to alter my witness examination or argument.

Work Ethic

Whether it is your first or one hundredth jury trial, your client’s fate will depend on the amount and quality of preparation you commit to their trial. Trial lawyers who lack the self discipline to put in long hours and significant time into preparation, or who have become so delusional about their talent in the courtroom they believe they do not need to spend as much time preparing, are hurting themselves and their clients’ cases. Becoming and eventually sustaining yourself as a successful trial lawyer requires dedicating yourself to preparation, preparation and more preparation. This equates to early mornings, late nights, weekends, and on occasion, holidays.

Trial work is not for everyone. To be a great trial lawyer means being willing to sacrifice a substantial portion of your time and energy during your life to achieve this goal. Since we are all cursed with a limited amount of time on this earth, dedicating a large part of that time to trial preparation requires single-minded commitment. I have personally witnessed exceptional preparation overcoming the shortcomings of talent or experience. I have never witnessed experience or talent making up for a lack of adequate preparation. Talent and experience assist in confidence and courage, but preparation wins trials.

Focus

Successful trial lawyers have an exceptional ability to sustain intense focus and are able to develop a level of concentration unknown to most. This is a skill that is learned, it is not innate. The key is preparing a plan for each part of trial, being able to delegate what can and should be delegated to other lawyers or support staff, and concentrating time and efforts on what only you should be doing. They reach their potential by spending most of their time focusing on what they do well.

Since strength is specific to all individuals, not every successful trial lawyer does everything involved in trial preparation (or trial) well. I surround myself with people who complement my strengths and make up for my weaknesses. Usually, these are other lawyers or support staff within my firm; but, on occasion, I go outside my firm to find the right person. Successful trial lawyers cannot be afraid to accept that they have weaknesses. They must recruit others to collaborate with who are strong where they are weak.

To improve my focus, I spend 70 percent of my time on the areas that are my strengths; 25 percent learning new things; and 5 percent on my areas of weakness. Growth equals change. If you want to get better, you have to be willing to keep changing and improving. This means getting out of your comfort zone and trying new ways of presenting your cases. One of the lessons I have learned over the years is in order to sustain success as a trial lawyer, you have to be willing to continuously change. Trial lawyers who are trying their cases the same way they were even 5 years ago are being, or already have been, left behind.

Storytelling

Humans are hardwired for story. It is the way our evolutionary minds have developed over hundreds of thousands of years. When you tell a story, you are laying the foundation for successful communication because storytelling is at the essence of how humans relate to each other. When we sense a story coming our way, the depths of our minds open to receive whatever communication is about to be transmitted. That is because storytelling is key to how we think, decide and behave. Story is the foundational instrument of thought. Most of our experience, our knowledge and our thinking are organized as stories. Stories are easier to remember because stories are how we remember.

PowerPoint slides, animations, video re-enactments, and all of the other technology we now use in trial, have changed the way we prepare and present our cases to juries. This technology provides us with powerful tools in the courtroom; however, successful trial lawyers do not sacrifice their talent as storytellers for technology. Storytelling is the ability to paint in the minds of jurors a compelling story with words that holds their attention, persuades their minds and inspires them to take action. Some of the best opening statements and closing arguments I’ve witnessed were done without a single demonstrative exhibit. This is not to say that I am discouraging the use of technology in trial. Those of you who have seen me in trial or have attended my seminars know that I use technology extensively throughout all aspects of my trial presentations. However, there is a right way and a wrong way to use technology. Too many trial lawyers have become dependent on PowerPoint and other tools to tell their trial story instead of using this technology to accent their telling of their trial story. I fell victim to this trap myself for a period of time. Successful trial lawyers know that the crafting and telling of their trial story is key to persuading juries.

Contrary to conventional wisdom, the ability to be a great storyteller is not just a gift of talent. Anyone can learn to become a great storyteller if they are willing to put in hard work. When I hear aspiring trial lawyers say, “I’m just not a good storyteller,” my response is always the same: “Then learn how to tell a good story.” It is a learned skill. People who believe that some people are born with the ability and that others are not do not realize that virtually all good storytellers learned their skill. Perhaps not through formal training, but from listening to and learning from other good storytellers. Usually, younger family members will learn this skill from older family members by listening and learning. However, there are numerous books on effective storytelling as well as multiple storytellers’ clubs, groups and events around the country.

Excellence

Perfection is rarely achieved by any person or organization; however, demanding excellence in yourself (and in your law practice) will move you closer to perfection. I have never conducted a perfect jury selection; given a perfect opening statement or closing argument; or thrown a perfect direct- or cross-examination of a witness. And I have certainly never tried a perfect case. That said, I have on occasion achieved excellence in each of these areas. Not perfection: Excellence.

When you strive for perfection, you will likely fall short, but the shortfall will often result in excellence. This requires a burning desire to always be working to expand your skills and knowledge in order to continuously improve your abilities as a trial lawyer. Great trial lawyers are continuously learning and trying innovative techniques for their trial presentations. “Successful” trial lawyers are never complacent or satisfied with their knowledge or abilities in the courtroom. The moment that happens, you have lost your edge.

Passion

I have never met a “successful” trial lawyer who wasn’t passionate about the causes they fight for in the courtroom. Nearly all truly “successful” trial lawyers come from humble beginnings or overcame significant hardships to achieve their success. Many of them grew up in poverty and had front-row seats to oppression, prejudice or injustice. Understanding the pain of injustice is an important component of becoming a successful trial lawyer. A trial lawyer who cannot understand or relate to the injustice their clients are experiencing cannot adequately convey that injustice to a jury. Trial lawyers who have experienced the pain of injustice possess an authentic passion which shows up in the courtroom. They do not have to fake their emotion and passion for their clients’ causes. It is as natural to them as breathing. Their passion is authentic because it is simply part of who they are.

Humility

Humility may be the quality that successful trial lawyers struggle with most. I am certainly no exception. I believe it is, however, an important quality for sustaining our success. If we are not diligent about preventing the outgrowth of arrogance that success can often bring, we can lose our way and forget why we became trial lawyers.

I do not know any successful trial lawyer (in the way I define it here) who was driven by money to become a trial lawyer. Financial reward can be, and often is, a result of success as a trial lawyer…but it is never the reason successful trial lawyers are compelled to succeed. So to avoid the trappings that financial success can bring, it is important to step back from time to time and remember why we became trial lawyers. I refer to this as “keeping my eye on the ball.” And I do this by having a meeting with the lawyers and staff in my office at least once a year where we discuss this very subject. We remind each other that representing the injured and oppressed is a calling, not just a job. We remember that our sole purpose is to fight for our clients because they cannot fight for themselves. We strive to remember that the reason our firm exists is to help people who desperately need our help. And, we remember that profit is simply a “result,” not the reason we took this path.

Teachability

As a young lawyer I was extremely fortunate to have great mentors who took an interest in me. In my early career, these mentors included Mitch Cobeaga, Franny Forsman, Betsy Gonzales and Rex Jemison. After a little over a year in practice, I had just won my sixth jury trial in a row. Rex Jemison walked into my office and said to me in a very serious tone, “Robert, you need to lose a trial soon!” After exclaiming in response, “Why should I want to do that?” Rex said to me, “Because you aren’t learning anything.” And any successful trial lawyer will tell you that trial lawyers learn more, and become better attorneys, from the cases they lose rather than the cases they win. This is because successful trial lawyers never pay for the same mistake twice. A trial lawyer who makes no mistakes, makes no progress; however, the trial lawyer who keeps making the same mistakes also makes no progress.

To learn from your mistakes, you must be teachable. Lack of teachability in some trial lawyers is rooted in their own success. Some trial lawyers believe that if they can simply learn the skills necessary to win a certain number of trials, or obtain a million-dollar verdict, they no longer have to grow. “Successful” trial lawyers do not think that way. They know that if they stop learning and growing, they relinquish their ability to achieve the success they are capable of achieving. “Successful” trial lawyers know that what got them there does not keep them there. Mitch Cobeaga had a way of reminding me to stay teachable. A week after obtaining a favorable verdict, he’d consistently ask me: “What have you learned new this past week, and how have you applied that for the benefit of one of our clients?” This helped me to understand that resting on accomplishments prevents achieving bigger, future accomplishments. To be teachable, we must be willing to admit that we do not know everything, and to keep learning from our mistakes.

Educator

“Successful” trial lawyers are mentors and coaches to other trial lawyers. They are not worried about giving away any secrets by sharing their trial techniques, methods and ideas. They find inspiration in helping other trial lawyers to be their best and are genuinely pleased when other trial lawyers are successful. Great trial lawyers do not measure their success by the number of cases they win, the size of their verdicts, or by any accolades they may receive. They do not even measure their success by whether they were able to reach their own full potential with the talents they possess. They measure their success by the number of young trial lawyers they teach to win cases for the people who need our help…and, by how they inspire them to achieve their goals.

Creativity

Great trial lawyers are creative. They are willing and eager to be creative in their trial presentations. They never allow themselves to get stuck in a rut. They are always seeking to be different in the way they present witnesses, make arguments and use exhibits from trial to trial, even if the traditional way has been successful for them in the past. Successful trial lawyers are not afraid of change, and they get excited about learning new innovative ways to try cases.

Authenticity

It is vital that we are authentic in everything we do in the courtroom on behalf of our clients. If we are going to take a case to trial, we must believe 100 percent in our client’s case and in our client. If we do not, we will not be able to fake it. Jurors have very intuitive minds and they will see right through us. And if the jury senses that we do not believe in our client’s case, they will have no reason to believe either. My partner, Dennis Prince, is remarkable at this because he meets with his clients weekly, during the months leading up to trial, to discuss who they are, how they feel, and where they want to go.

In trial, you must be who you are and not try to channel some other person or personality. I have observed lawyers try to do this with disastrous results. To cite just one example, I witnessed a trial lawyer suddenly develop a thick southern accent when trial started. The trial was occurring in a rural area. Neither of us was from the area. I presume he was trying to make the jury believe he was local and contrast me as the outsider from Las Vegas. He fooled no one, and immediately lost all credibility with the jury. The verdict was much worse for him than it would have been if he would have just been himself. This is an extreme example, but this principle applies to things as simple as the way you dress to the natural manner in which you speak. Always be your authentic self.

Credibility

Over the past 5 or 6 years, I have noticed a disturbing trend by opposing counsel during trial. For years this trend appeared to be conduct that was isolated (at least in my experience) to out-of-state counsel admitted pro hac vice. [Ed. Note: Pro hac vice usually refers to an out-of-state lawyer who is granted permission to participate in a certain case, even though the lawyer isn’t licensed to practice in the state where the case is being tried.] I assumed these pro hac vice counsel did not care about their credibility with the court because it would be highly unlikely they would appear in front of the same judge twice. But in recent years, I have noticed this trend creeping into the conduct of some Nevada attorneys.

All trial lawyers experience trial courts’ ruling against them numerous times on critical pretrial evidentiary issues. This is not an uncommon experience. In most cases, you win some of the pretrial evidentiary rulings and you lose some. As credible ethical trial lawyers, we accept the trial judge’s rulings and we conform our presentation of our case to comply with these rulings. If the trial judge’s rulings are erroneous and they affect the outcome negatively for our clients, we have a remedy. We can appeal.

When trial counsel chooses to willfully disregard the judge’s rulings and make arguments or present evidence excluded by the court, this is not only disrespectful of the court and disturbingly unethical, it irreparably destroys their credibility with the trial judge. I recently had a front row seat to this type of conduct that resulted not just in a mistrial, but in defense counsel being found to have willfully violated a substantive pre-trial order and found to be personally responsible for the opposing parties’ costs and attorney’s fees under NRS 7.085. As I watched this unfold, I could not imagine how defense counsel could have possibly thought willfully violating a clear court order could somehow be worth the risk of such a severe sanction but, more importantly, the loss of credibility with the judge.

A trial lawyer without credibility has no chance for success. Our credibility is so vital to our success that it is often described as a trial lawyer’s most important asset. We must be vigilant in every court appearance to ensure that we maintain our credibility with the court. To do otherwise undermines our ability to effectively represent our clients.

Courage

You do not have to be a great trial lawyer to try a case, but to be a great trial lawyer you have to try cases. There is a myth propagated by many in our profession that to become a successful trial lawyer you have to be willing to take unreasonable risks with your client’s future. Courage to try cases comes not from the willingness to take unreasonable risks, but from the confidence which comes from preparing your client’s case from start to finish, as if their case were undoubtedly going to trial. This requires the discipline of having the same work ethic with every case. While it will require more hours and work, you will achieve better results for your clients, whether from jury verdicts or from reasonable settlement offers. The courage to take a case to trial arises from the confidence you have in your case. Your confidence in your case results from your preparation.

Losses and Perseverance

In 2003, Robert Adams and I tried a near-perfect medical malpractice case…or so we thought. Our client had been turned into a quadriplegic by the negligent performance of a pain management epidural. During cross-examination of the defendant’s pain management anesthesiologist expert, he admitted that he assumed that the defendant had the syringe connected to the needle with his thumb on the plunger while he was advancing the needle into our client’s epidural space. He also admitted that if the defendant had not had the syringe connected and his thumb on the plunger while advancing the needle into our client’s epidural space, that would have been malpractice. When showed the defendant’s deposition testimony where he admitted he did not have the syringe connected and his thumb on the plunger when advancing the needle into our clients’ epidural space, the defense expert admitted that the defendant fell below the standard of care. During cross-examination of the defendant anesthesiologist, he admitted that the manner in which he performed the epidural fell below the standard of care. Further, we also had an MRI taken just days before the epidural showing no damage to our client’s spinal cord, and an MRI taken three days after the epidural showing a large black dead spot on our client’s spinal cord right where the defendant was placing the epidural.

The jury returned a defense verdict, and we lost what most people would consider the “unloseable” case. My reaction was not admirable. For a time, I literally gave up. I decided I could not be a part of a justice system that could be so unjust. After feeling sorry for myself for a few weeks, my wife and partner Tracy, and my partner Robert Adams, talked me “off the ledge” by telling me to stop feeling sorry for myself and to remember it was our client who was hurt, not me. They reminded me of why I became a lawyer and that if I quit, I would be abandoning my own professed principles.

In 2014, Will Kemp and I spent 5 months trying a case against a pharmaceutical company that we believed had caused great harm to two of our clients. (We simultaneously represented numerous other clients against this same pharmaceutical company regarding the same drug for the same harm.) The case was very complex, and required enormous amounts of resources—both financial and staffing—to prepare and try it. Causation was difficult to prove, but we truly believed we had the science and experts to overcome the obstacles. The jury returned a defense verdict.

I was no less disappointed than I was from the defense verdict in 2003; however, my reaction that time was much more mature and appropriate. We began the second trial against this pharmaceutical company in the summer of 2015 on behalf of two more of our clients. Instead of just putting on the same case with the same experts and the same theory of liability and causation, we engaged in a critical analysis of the previous trial and tried a tighter, stronger and more effective case. After 8 weeks of trial, we were able to come to a “resolution” on behalf of all of our clients with the pharmaceutical company.

I learned a lesson from my poor reaction to my 2003 loss that prepared me for the right attitude after my 2014 loss. This lesson gave me the power to persevere and to move forward to achieve a “resolution” for my clients. No successful trial lawyer goes through their career without losing cases. If they do, they are only trying the easy cases and settling or withdrawing from the difficult ones. There are times in every successful trial lawyer’s professional life when it appears that all is lost. It is not the losses that inevitably occur in all of our careers that will measure us, it is how we respond to them.

Inspirational

Successful trial lawyers know that their primary objective is to inspire others to provide full and adequate compensation to their clients for the harms they have suffered. “Others” include insurance adjusters, opposing counsel, mediators, arbitrators, judges, and jurors. To inspire others, from adjusters to jurors, we must be professional, courteous, credible, and be able to convey our client’s story in a manner that will inspire each of these entities to want to fully compensate our clients.

Positivity

Whether you believe you will win your trial or you believe you will lose your trial, you will achieve what you believe. This often-used statement, in various forms, is as true for trial lawyers as it is for any other person seeking success. Virtually every great trial lawyer who has sustained success over decades of practice believes with every fiber of their being that every time they start a trial they WILL win. A positive attitude about your case is a powerful thing that will influence your client’s attitude and, in turn, influence their aptitude as they testify their story to the jury. A positive attitude is an infectious thing that will influence the attitude of your partners, associates and staff, and in turn it will influence their aptitude as they work on your client’s case. Positive attitude inspires increased aptitude. Believing they will win inspires successful trial lawyers to work harder to ensure a win, which results in better preparation, which leads to more confidence and increased performance during trial. I am not saying we ignore problems with our cases. I am, however, suggesting that going into trial with “the sky is falling” attitudes will result in the sky actually falling every time.

Problems are created to be solved, not just to worry about. At our firm, we do not allow negative attitudes while preparing for or during trial. We all go into trial believing we are going to win. Do we win every trial? Of course not. But losses are rare.

Conclusion

There are certainly other qualities of successful trial lawyers that I did not mention here, but remember, this article is titled “The Ideal Qualities of a Trial Lawyer,” not “All the Potential Qualities of A Trial Lawyer.” Additionally, this is an opinion piece and not a hard-news researched article. It may even be surprising to you that I did not mention “character” as an ideal quality of a trial lawyer. But that was purposeful, not an oversight. This piece is meant to be an opinion about the qualities of “successful” trial lawyers, not a debate about peoples’ character. It is not that I do not believe good character is an important quality for all people to have, regardless of their profession. However, good character can mean different things to different people based upon their personal values, religious faith, life experiences, or upbringing. Many people believe that good character means putting family first and living a balanced life. But those traits do not necessarily exist in those I believe to be successful trial lawyers. Most successful trial lawyers do not put their families first, and do not live a balanced life. They tend to be driven to the extreme; are absentee husbands, wives and parents; and work all the time. This is neither a criticism, nor a glorification. It is simply an observation. Ask my family.