Help me become the best trial lawyer I can be.

July 9, 2007 6:07 PM

I am currently a criminal defense attorney in rural Vermont, and my goal is to become the best trial lawyer I can be. Please recommend any books you think I should read, and offer any advice you have that will aid me.
posted by kellygreen to law & government (12 comments total)

Sign yourself up for a NITA trial advocacy program. I haven't gone, but I know many who have and they all swear that it was the best thing they did for their trial practice.
posted by Mid at 6:49 PM on July 9, 2007

Seconding NITA -- I'm going into my third year of law school. My Trial Ad prof does a lot of NITA Classes (Nancy Vaidik, Indiana Court of Appeals Judge). She was awesome.

As far as books, my trial team coach recommended these for a directed reading I'm working on:

Cardinal Rules of Advocacy (Douglas S. Lavine)
Fact Investigation (Zwier & Bocchino)
Theater Tips and Strategies for Jury Trials (David Ball, Ph.D.)
The Winning Argument (Waicukauski, Sandler, & Epps)

All very interesting books and they SEEM like they'll be helpful, though since I have no practical experience to speak of, I don't really know how useful they'll be. That said, the Prof who recommended them definitely knows his stuff (and has a lot of practical experience), and he keeps these (among others) in his personal library... so do with that what you will.
posted by toomuchpete at 7:12 PM on July 9, 2007

I also did the NITA course and thought it was worth-while.

The only book I heard multiple professors reference was Mauet's Trial Techniques. I've read some of it and it was the same type of information covered in the NITA course, but of course there's no substitute for live practice.
posted by falconred at 8:20 PM on July 9, 2007

I don't know how plausible this is, since I know nothing of the DA system in Vermont, however, if you can - work as a prosecutor for a while. (I assume by your statement that you are wanting to be the best criminal defense trial lawyer you can be (as opposed to wanting to change fields and be the best personal injury trial lawyer, or some such)).

There are a number of reasons for my suggestion, one of which, in the interests of full disclosure, is that I am a prosecutor and I highly enjoy my job. You may find that in addition to the not inconsiderable advantage that working with others on a regular basis in the same field gives you, you also have the experience and knowledge of your ADA mates to refer to and fall back on.

Next, learning how to prosecute well will give you tremendous advantages in defense work - knowing how to plug holes will give you the corollary knowledge of how to widen them. Knowing how to establish various inferences will give you the tools to attack those inferences.

As well, learning how the police do their job from more of an "insiders" perspective will give you a powerful edge when you are cross-examining them - what lacunae in their notes might really mean, how their training did or did not lead them to certain actions, etc.

Plus, learning who the various people are in the DA office will give you a better idea of who is likely to deal on a file, or who is the better opponent in a particular type of trial.

Last, (and I assume (again) from your question that you are just starting out in criminal work) being a prosecutor first will ensure that you have plenty of work right out of the gate - it may be difficult to build up a busy criminal practice in a rural area, which will prevent you from getting the immense amounts of practice that is the backbone of learning to be a good trial lawyer. Your workload is assigned to you, so you don't need to drum up clients, and you can spend your energy on trial work, rather than frittering your energy on the business aspects of being an attorney.

Many of the best defense counsel I know worked as prosecutors at or near the beginning of their careers, and while it is no guarantee of success, I have difficulty seeing how it could ever be harmful to your advocacy skills. Besides, it probably won't hurt your business later to claim that as a former ADA, you have more to offer the guilty clients who come to your door.
posted by birdsquared at 8:25 PM on July 9, 2007 [2 favorites]

Birdsquared raises a good point - it depends on what you want to do in the future.

I know many of the better public defender offices and private criminal defense small-firms will not hire someone who used to be a DA. Or at the very least make it extremely difficult for a former DA to join their practice. So while being a DA may improve your personal skills, it will also close some doors for you.

But it really varies with the location whether or not it's considered ok to transfer from one side to the other - and I don't know about Vermont. You probably already know the situation there, but if not make sure to ask around first.
posted by falconred at 8:34 PM on July 9, 2007

I currently work for a small, busy firm, and within that firm I represent the indigent criminal defendants in my county. I have a moderate case load with a good mix of misdemeanor and felony cases. I also have several 42 U.S.C. § 1983 cases pending in federal court. At this point, I cannot see working as a prosecutor, but that is a good suggestion.
posted by kellygreen at 8:42 PM on July 9, 2007

I'm a fairly newly-minted criminal defense atty, and here's my advice:

Even the best book in the world isn't going to give you the experience and teaching you need to be a good criminal defense attorney.

Find a great mentor -- preferably somebody who has decades of successful experience under their belts -- and go to work for them.

That's what I'm doing, and I have to say, I don't believe there is any adequate substitute.
posted by mikeand1 at 9:25 PM on July 9, 2007

The key for you is time and efficiency. You don't have much time and if you have no time to prepare, you are not going to be any good, no matter how smart you are. Develop a method for approaching each case the same so every moment you spend is focused on a task which moves you towards your goals--nothing kills a lawyer like aimless time leafing through the file.

Seconding Mauet's books, both Trial Techniques and Pretrial. I have adapted his approach and I break down the approach very simply--I analyze the case, looking for claims and defenses, I write a bare bones memo to myself citing the law for those claims and defenses. I also then list what I think might be evidence which might help me prove those defenses.

I then go to an in-depth analysis of the case. I go through all the documents and take notes, making sure to cite page numbers as I take notes. I list the names of all of the case actors, list the actual evidence I'm going to most likely use and list my witnesses. Finally I create a timeline of the case so I know where I am going with each. As you get better with the technique, you can get a lot faster.

That's just the start of course, with later case phases including drafting openings, directs and potential crosses, as well as preparation of exhibits, potential travel and everything else.

I use an excel spreadsheet with all of these tasks and the ones that follow, break the case into phases and put in deadlines so I know what the next move is and when it has to be done. Once you have done it once, you can just copy it for each new case. Save time by using past workproduct you can tweak.

I don't do criminal most of the time, but administrative defense of public employees in the Federal government and local law enforcement. Mostly I practice before the federal Merit Systems Protection Board. It is very similar to criminal in that you are defending an individual from charges of misconduct.

The key is planning ahead to make sure that you have the time to do all of this. I block out the phases on a big dry-erase calendar so I know what I'm doing when. I'm not afraid to change my schedule to meet new demands and changes either.

Also, if you can afford it, get practice software. It lowers the time you spend on overhead non-billable work and pays for itself.

Without the organization, the most brilliant advocate in the world will not have the time to prepare to win.

On the advocacy side, I stick to a very few main points, and have a very simple statement of the case whenever possible. I use repetition like crazy--my writing is deliberately boring in many ways but there is no doubt what I am arguing about--I put my theory of the case up front and repeat it at the beginning of any analysis section and then at the end of the motion or pleading. I stick to the same formulations for the same concepts so that my reader always understands what I am talking about.

Finally, don't be afraid to continue to learn. There's always new things and techniques to use.
posted by Ironmouth at 9:45 PM on July 9, 2007

I almost forgot. Feel free to E-mail me with any questions. It is in my profile.
posted by Ironmouth at 9:50 PM on July 9, 2007

There are multi-day seminars available where you and fellow attorneys get together and do mock trials. These are like abbreviated trial advocacy classes from law school, except at a much higher level because all the participants are already attorneys who know the basics.

I've never attended one, but I see great value in them. In criminal defense work (at least in my experience) so few cases go to trial that our experience day-to-day is primarily in client relations, negotiation, and preliminary hearings.

As to the suggestion that you work as a D.A. for a while --- I agree with the person who said that this may foreclose you from certain opportunities with defense firms. A lot of defense lawyers are in that line of work as a matter of deep principle --- and would look very warily at someone who moved from defense work to D.A. work and back. It might appear that you don't have any particcular commitment to defense work.
posted by jayder at 10:37 PM on July 9, 2007

Thirding NITA and Mauet. And I hear spectacular things about Herbert Jay Stern's books.
posted by commander_cool at 1:03 PM on July 10, 2007

From my personal perspective, I think NITA is a waste of your time. Mauet and other such books written by great trial lawyers aren't much better. Obviously the answer to your question is going to be intensely personal based on how you learn. Maybe reading is how you learn best, but even if you learn all they have to teach you, it won't make you a great trial attorney. They may improve some of your bad habits, but they won't make you successful.

Here is my personal view on the matter: truly great trial attorneys are born, not made. They are naturals who develop images and skills. Now, even if you were not born to be a great trial attorney, you can still learn from their tricks and improve your own abilities and become very good. I have made it my goal throughout my practice to do everything I can to watch the great attorneys in practice. And when I watch them or go up against them, I'm constantly asking myself, "Why did he/she do that/say that?" And I try to absorb their style and how they present themselves. Importantly, do not try to learn from mediocre attorneys or absorb what they do. The only thing that watching mediocre attorneys is good for is for the comparison to see what they aren't doing that great attorneys are.

Every great trial attorney will have a different style. To be the best trial attorney you can be, you have to develop your own style that fits you (e.g., don't try to be Gerry Spence Mountain man if you aren't). So what I have been trying to do throughout the early parts of my career is watch and learn from all of the great ones I can. And I have been trying to develop my own style and incorporate what works and feels natural to me. Spend enough time around actual litigation, and you will see with your own eyes what works and what doesn't. You will learn to spot bad lawyering and good trial advocacy.

The next step is put it in practice. I don't know what your criminal practice consists of, but most of the people I know doing criminal defense don't really have the opportunity to really hone their craft. Granted they are in court often, but what they are doing is not trial work that develops skills because they are messing with rote possession charges, duis, petty theft, etc. But you have to put yourself in the position to develop it. Personally, I am always trying to refine and add to my trial skills. I don't claim to be one of the greats yet, but in my fairly brief career so far, I've already received professional distinctions for my trial ability. I don't say that to blow my own horn, but to say that I think learning from talented attorneys has allowed me to get quickly establish myself in the eyes of others who haven't bothered to develop their own skills.

In short, you will become a better trial attorney by watching great trial attorneys and not based on what they tell you in a book. It is a wholly insufficient substitution to read about it. So watch and borrow and test to find out what works for you. Soon enough you will have your own style incorporating successful aspects of other attorneys that will be recognized by other attorneys or judges.

The only thing I can tell you that is the real secret of all great trial attorneys is that the case is won or lost at the deposition stage. If you don't prepare like hell for deposition and win it there, then all the great trial skills in the world probably won't win the case for you at trial. Conversely, if you become great at taking and defending deposition, you can set yourself up with the stacked deck so you can walk into the trial and win it with authority.

Enough rambling from me right now.
posted by dios at 12:18 PM on July 11, 2007