Trial Lawyers are often perceived by the public as arrogant and phony. This is because the art of braggadocio is so prevalent and even sometimes necessary in our profession. Behind the show lie those memories that need to be periodically replayed so we don’t buy into the myth of our professional persona.
For my first solo Superior Court appearance I was given a file and told it was a simple entry of an order. I didn’t have to do anything other than show up. Unfortunately, I had been set up. The judge was furious about something that previously happened and gave me a tongue lashing that seemed to last forever. When it was over I walked briskly from the courtroom, the Plaintiff’s lawyer silently beside me. As we rode down the elevator, tears began to slip out. I was mortified. We walked out the revolving door and as we parted, the lawyer spoke kind words of encouragement. Lessons: 1) An adversary can be compassionate and gracious but still a worthy advocate; 2) Always be prepared and know why you have showed up; 3) Tears of humiliation can be suppressed until one escapes from a courtroom.
A year later I was assigned to defend product liability litigation involving DES (drugs given to women which gave birth defects to their daughters). Depositions began and were held in big conference rooms. All the defense lawyers representing all the manufacturers were seated around the table and again around the perimeter of the room. We all wore suits. The Plaintiff’s lawyer wore beads and dangling earrings. I didn’t have a clue what I was doing. Questions would be asked and everyone would have a turn. I always tried to sit at the end of the line. I quaked in fear that I would miss a question or objection or do something wrong. I felt like the words “really young dumb attorney” were emblazoned across my forehead. Lessons: 4) If you don’t know what you’re doing, keep quiet, listen, mimic, and try to implement; 5) It is possible to appear confident, even when you’re not; 6) There’s something different about Plaintiff attorneys.
My mentor in insurance defense, was Richard Foreman. Dick decided I was ready to try my first case. It was a premises liability action and I was prepared to the max (and beyond). I was so nervous. Dick discussed my need to somehow let the jury know this was my first trial so they wouldn’t hold my performance against our client. Eventually it was time for opening statements. I was shaky, scared and had notes I couldn’t read. Lo and behold, as I talked, I began to feel more secure. I was doing it! Just when I was gathering steam, I heard a hissing sound from the defense table. I ignored it and continued. The hissing came again and again. Don’t be sidetracked I told myself. Finally, I heard Dick yelling (quietly) in frustration – Karen – you’ve got all the names mixed up! The 12 jurors, judge, bailiff, court reporter, parties, other attorney and my mentor stared at me. What a dunce. I looked at the jury smiled sheepishly and said – you know, this is my very first trial. I’m not nearly as experienced as the Plaintiff’s lawyer. If from time to time I make a mistake, I apologize. Please bear with me. Four days later the jury came in with my defense verdict. Lessons: 8) Jurors appreciate humility and honesty; 9) You can’t just focus on the presentation, you must see what is happening in the courtroom; 10) It’s not whether you might make a mistake in trial, it’s simply a question of when you make a mistake, are you going to be able to laugh at yourself, deal with it and move forward.
When I was an older lawyer, smug in my ways, I was defending a case where the target defendant was trying to wrongfully implead my client who was a co-worker of the injured Plaintiff. You can’t sue the co-worker, I explained to the young defense lawyer. It’s crystal clear. Duh. The day of the motion hearing I arrived at 1:00 ready to squish her flat. The courtroom doors were locked. I waited and waited until a terrible thought crossed my mind. Where was everyone? I called my office. It was at 11:00 not 1:00. I missed it! I crumpled down on the bench in the hall and tried to stop hyperventilating. Through a haze of misery I called my opponent. There was nothing to do but lay my soul bare. I could tell she would have liked to lord it over me, but since I had eaten humble pie, she didn’t have the heart. Later, I appealed the court’s decision which Division I overturned on an a buse of discretion standard. Lessons: 11) If you think you’re invincible, you will be unpleasantly surprised; 12) Don’t get too discouraged when you lose the skirmishes, the thing to do is win the war; 13) Learn how to type.
Recently in a small trial, I floated through voir dire, was excellent in opening and presented the Plaintiff who was wonderful. The next witness was my client’s treating doctor. It was his first time in trial. I figured the jury would like him and be favorably disposed since he was not a professional witness. Wrong. First, he forgot to bring his chart. I gave him my ER 904 copies which he fumbled through, but still couldn’t find anything. When he did, he would lose his place. The injuries were left sided, but he couldn’t find any reference to left sided. He was sincere, humble, believable, but not persuasive nor authoritative. He was the only care provider who treated my client. The pleasant look on my face grew fixed. I couldn’t wait to get him off the stand. I figured out ways to deal with this “slight” set back, mainly having different witnesses (including the defense medical examiner) read the doctor’s notes into the record, but the case had suffered a blow. Lessons: 14) You can’t control everything; 15) When things do go sideways, try not to panic or give up; 16) Do your best and forgive yourself for not being perfect.
I love being a Plaintiff’s lawyer and reap great personal satisfaction in helping victims of injustice. One morning I decided to bring my three girls to court so they could watch me in action. On the way out the door, my ten year old told me my outfit was ”<critical look and grimace> okay… but <sigh> those shoes mom.” I trundled them down to King County Superior and as we walked from the parking lot to the second avenue entrance, they whined about the smell and marveled that the courthouse was so “ugly”. Their favorite part was going through security. Our case was special set and counsel argued for a good 20 minutes. When it was over I proudly asked the girls what they thought. “Well, said the eldest – “it wasn’t too bad, but I didn’t understand a word you said.” “Boring” piped in my nine year old. The six year old was the most impressed – “You weren’t scared.” Lessons: 17) Our sense of self-importance is self imposed; 18) Our job is just that.
(Photo: When this article was written this is how old the girls were).