Five Ways for Young Lawyers to Avoid Being Out-Lawyered by the Enemy || By Elizabeth Munro
March 21, 2016
“Excuse me, Miss. Are you represented by an attorney? You should wait for him to get here before you go back to chambers.” As a twenty-six year old with a freshly printed bar card, it was certainly not the way I had expected my first or maybe second hearing to begin. With a red face, I explained that I was the attorney and I was waiting for my hearing. My opposing counsel (about thirty years my senior) tried not to laugh, but it was clear he was amused by the misunderstanding.
After waiting ten minutes or so, we went back into the Judge’s chambers. I was obviously nervous. It didn’t help that the second we all sat down, my opposing counsel and the judge seemed to be friendly and knew each other very well. Great start, I thought, as I opened up my hearing notebook and reviewed my notes. I had spent maybe twenty minutes reviewing for this hearing when I probably should have reviewed the case law for an hour or so.
The Judge, after sitting down asked “what a girl like me is doing in a place like this.” I smiled and I stuttered as I told him which motion we were here on. Rarely in law school did I ever get nervous, but I certainly was at this hearing. I sped through my argument anxiously, missing things I had intended to say. When I was finished, the judge stopped me and read my motion. The defense attorney argued his points fluidly, calmly and with ease. Luckily, the judge partially decided in my favor. It was a minor issue and a small hearing, but I felt pretty defeated because I really thought I could’ve done better.
As I reflected on the hearing, I thought, what did law school actually prepare me for? The answer to that has become abundantly clear as time has gone on. It didn’t prepare me for anything! Law school gave me the base knowledge of “law” and the tools to figure it out on my own. Sounds great in theory to just prepare and relax, right? Well, as a young attorney, it’s really not that easy.
In the last few years, I’ve noted several mistakes that I’ve made and thought I would share for my fellow newbies.
First and foremost:
1. DON’T GET BOGGED DOWN BY THE ENEMY’S EXPERIENCE
While I felt unprepared for the above-mentioned hearing, I had everything I needed to defeat the enemy except for one thing: confidence. Normally, like most attorneys, I don’t think I have a problem in the confidence department. However, on this day, I let my insecurities of being young and inexperienced get in my head and affect my performance. Did that defense lawyer even have a notebook or case law with him? No. I did though. I did my homework on the issue far before the hearing and reviewed it. The defense attorney got in my head without even trying, just by being calm and collected.
In a recent Titans of Trial Article, Dale Swope was asked what the best mental technique for young lawyers intimidated by hearings or trials against older, seasoned attorneys. Mr. Swope’s advice was to: “[t] ake the power of her fear away from her. Walk into chambers slower than you think you should. Speak slower than you think you should. Use small words and short sentences. Be respectful.” Mr. Swope also pointed out that those older attorneys are afraid too, but they’re afraid that we young lawyers, presumably being less busy, can prepare more and potentially have a better grasp of the facts.
I am certain that everyone has a story similar to mine where they went into a hearing and didn’t feel entirely comfortable with it and if you haven’t, you probably will. My intention at this early stage of my career is to prepare and “be the prodigy.”
2. DON’T LET THE DEFENSE ATTORNEY “BULLY” YOU
Certain defense attorneys that I have come across (who shall of course remain nameless) are bullies. They’re rude, they’re unprofessional and they’re like sharks that see you as prey. Almost all of the rules of professional conduct are out the window for these individuals. They know you’re a “baby lawyer” and they want to capitalize on it. These attorneys will cut you off in hearings, make frivolous objections to distract you during depositions, write you letters every other day pertaining to the same issue and use their brash attitudes to fire you up and make you angry.
My first reaction with several of these defense attorneys was to give the nasty attitude right back to them. When I became this type of lawyer, it did two things: undermined my professionalism and intelligence level. I let them get under my skin. I was told by an attorney much wiser than I am, to do the exact opposite of what I was doing. Instead of battling them, kill them with kindness. When they interrupt you in a hearing, stay calm and let it happen. Let the judge see their insecurities with their arguments. Much to my surprise, the advice worked. The attorneys that were once rude, unprofessional and arrogant were now asking about my holiday plans and how my family was doing. We may not like each other in the slightest, but having a shred of respect for them professionally (or at least pretending to) seems to work for me.
3. DON’T BE AFRAID TO ASK FOR HELP
Being an attorney is tough. Being a litigator and trial attorney is even more difficult. Luckily for the Plaintiff (baby) lawyers, we have a great support system. Through FJA we have some of the best trial attorneys in the country willing to answer questions. If you cannot figure something out on your own, ask for help.
For me, it was important to have mentors. I was a very young attorney when I started managing Florida Vanguard Attorneys. At the time I came on board, all of the defense attorneys I was against were seasoned and practicing for at least fifteen to twenty years. As I learned the hard way, that kind of experience could not be taught overnight. Strategy for difficult cases cannot be taught overnight. I think that knowing you’re not coming out of law school as Dale Swope or Steve Yerrid is half the battle. We learn these techniques over time and can ask others for pointers along the way. Because of many of my mentors, I have been able to begin developing my style as an attorney and case strategies from inception through trial.
4. DO NOT UNDERESTIMATE YOUR OPPONENT
Every attorney probably has that defense lawyer that genuinely seems like he/she has no idea what is going on. They are always failing to provide you discovery, respond to emails and letters and getting trial, mediation and deposition dates is nearly impossible.
I have found in my minimal time practicing that these lawyers are mostly in house counsel that have a heavy case load, but pay attention when it’s important. If you attend a hearing with one of these attorneys, note that they are on point, read up and seem like a completely different lawyer than the one you were hounding for verified answers a week ago. Depositions similarly seem procedural for them. They show up with information about claims your client never told you about and suddenly, you feel like the one who is unprepared. This happened to me once and I will (hopefully) not make the mistake of misjudging opposing counsel again. I now always expect the snake in the grass with all defense lawyers.
5. MAKE THE THREAT OF TRIAL, A REAL THREAT
Some cases are not the greatest, but you took them on for a reason. You believe when your client says they are in pain and you want to help. Your goal, of course, is to be your client’s advocate and advisor and to make the insurance company wish they would have done the right thing, so a lawsuit is never filed. Increasingly, it seems to me that a lot of insurance companies are waiting until the eve of trial before they offer a real amount to the Plaintiff. By then, you’ve done your preparation, shelled out the price of a mid-sized Toyota for your experts and you’re ready to go.
It seems appealing to avoid taking a gamble with a jury. If that happens, the insurance company once again wins at our client’s expense. I’m guilty of doing this too. There are no guarantees with a jury. You can’t promise your client will get a dime, but right then, the night before trial, you can get them something. Because the costs are so high, they would not net what they would have a month ago when you asked for this amount, but they get something.
It’s a tough spot to be in, but what I have chosen to do is to set a date with my client. As of x day, if there are no offers above this amount, we send the checks to the experts and push forward. To the extent Defendant wants to settle at a later date, they will need to come to us with x amount. I hope to employ this strategy in the future to make the threat of trial, a real threat.
Ms. Munro is the managing attorney of Florida Vanguard Attorneys in Tampa. She attended Michigan State University for her undergraduate degree and Florida State University for her law degree. Florida Vanguard Attorneys specializes in personal injury and insurance bad faith litigation.