Titans of Trial || Wisdom from FJA's Greats
September 21, 2015
Dale Swope, Swope, Rodante P.A.
Q. What is the best mental technique for young lawyers intimidated by hearings or trials against older, seasoned attorneys?
A. Fear is a massive issue and you never stop working on ways to come to grips with it. My partner Brandon likes to remind our young lawyers to “always remember that the ax murderer is more afraid of you than you are of him.” And there is a lot of wisdom there.
While young lawyers are understandably afraid there are some procedural magic words they haven’t learned to say to unlock the case, or that they will forget their own name when the judge asks, older lawyers are also scared, although for other reasons.
The seniors are scared that something new has come along since they last bothered to look. We worry that young lawyers have more time to prepare, or maybe that we have so many things going on that we will confuse important facts in this case with those in some other one. Their ‘preparation’ may be second hand from someone they don’t trust, and they are petrified they will be embarrassed by some multitasking prodigy with a laptop.
BE THAT PRODIGY. You can’t do it with parlor tricks or shortcuts, or by arguing from some butchered memo you copied from TLEL, but never actually read. But you can do it if you have taken time to learn the issue, formulate your ideas into an organized format, and made positive you actually understand all the cases you are discussing well enough to be able to see both sides and explain why your side is right.
In other words, BE the lawyer you promised yourself you would be in the sixth week of CivPro I, when you realized you loved this enough to make it your art.
The night before the hearing, watch this scene from Talledega Nights.
On the day of and most importantly, avoid the last minute ‘deal’ that gets struck in the judge’s waiting room. That place, right there, is where the old lawyer will usually beat you. She is ‘negotiating’ with you, and talking loudly and condescendingly to you because she is afraid of you. Know that she is afraid and let her stay that way.
Take 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. And when fear rises up from your belly, know that it is good because it has been there for billions of years, then grab your fear and ride it, Ricky. Ride it like a skeleton horse into the gates of hell. And win.
Q. When you do an initial investigation for an auto accident case, what are the key questions you believe are often times overlooked by younger or less experienced lawyers?’
A. Unquestionably, those that relate to finding more coverage. They tend to ask a lot about damages, and definitely about liability. But it is almost like they get bored by the idea of insurance, and assume coverage is going to be determined by a paralegal’s phone call to an insurance company. Unless you have a small injury caused by a Walmart truck, that's nuts.
The largest auto cases are often caused by people with the least coverage. Finding more insurance will be the most important and probably the most difficult part of the case. Don't be so cocky as to think you can do it all by memory. If you want to overachieve, create an algorithm to pursue all the questions needed to root out potential coverage. You are able to download one from the internet but things change so be ready to update it – here is one.
The bottom line is, if you ever find yourself about to settle low because there is not enough insurance, stop. Get a cup of coffee, close the door, take off the headphones, and start diagramming out coverage facts you forgot to tie down, like relatives in dual residences, RV’s – all of it. There is very often more insurance there if you take the time to find it.
Q. If you weren’t a trial lawyer, what would you be?
A. That's easy, a high school football coach. And if you think about it, there is an awful lot in common between what coaches do and what we do. We are both engaged in a clear adversarial process. At the end of the day we are going to either be the winner or the loser, and the loser will not get a participation trophy. Both of us spend a great deal more time in planning and preparation than in our actual "games.” The time and hard work invested in preparation in the weight room, practice field, or witness preps will pay off on game day.
We are both dependent on our assistants and teams and our ability to inspire them and improve them is a large part of our job. Like lawyering, coaching involves a fabulous concoction of intellect, strategy, tactics, and physical performance. They create plays, defenses, and game plans, but also prep for the unexpected, knowing they may have to signal an audible at any time.
Most importantly, a high school coach, like us, can be a true hero to the people they work with. Their motivation is knowing they can make lasting changes in people's lives through commitment, leadership, and hard work, even on those unhappy occasions when they do not win.
Q. How many times do you have to practice an opening or closing prior to trial?
A. Just a couple more.
Closing is something that I'll think about from day one. Everything I do is sort of intended to support the closing statement that I want so it's always in the background. I’m always thinking of little paragraphs and licks in the shower or when I am driving home that I save someplace on my desktop.
But from the pretrial on, it’s about the opening. I type out a draft early on and actually use that for final trial prep, basically ensuring I can comfortably say every word of it– or else I revise. Many times.
And when it’s right, I memorize it. There isn't much of a trial that you can memorize because so many changes as you're in the middle of it. You can memorize your opening, though, and I try to.
You can also memorize the last two minutes of your rebuttal closing. That is the absolute last message you are ever going to deliver to the jury. It should not be driven by what the defense has said in their closing or the details of how the evidence came in. It should instead empower and embolden the jury to do what they hopefully are already eager to do. There should be no notes, no stuttering, no doubts or hesitation, just you, doing you.
A lot of people have invested a lot of their soul into making you great at this moment. Earn it.
Q. What makes your practice different from others? // What mistakes should we as young attorneys watch out for as we enter the 5th year and have our feet wet but still have so much to learn? // The best advice you’ve ever received? // What are some top tips that help you succeed in your practice? // What critical mistakes have you have made and how would you avoid them if you could have a re-do?
A. I put all these questions together because they are really the same thing. Like, “You’re stuck in a blizzard on Mount Everest and you're never coming down. They've made radio contact to the big room at the Workhorse Seminar but your battery is going dead fast. What do you want to say?”
Well, it's pretty practical: Avoid the trending belief that the only successful injury practice is one based on big volume. It just isn't.
Unquestionably there are lawyers who handle dozens or even hundreds of cases at a time, leveraging paralegal case managers to settle for whatever the insurance company is willing to pay. They only have time to involve themselves in the process about as much as the old river pigs directing an individual log to avoid a jam as hundreds of them are being floated down to the sawmill.
Coincidentally, that type of practice was just beginning to take hold when I was about a five-year lawyer. I too had the concern that perhaps this was the inevitable path of the future, and considered trading in my fly rod for some dynamite.
I had the exceptional good fortune to discuss these concerns with true legends of our profession like Lefferts Mabie Jr, and Al Cone, who were alive at that time, and proved by example that, while practicing in bulk may be one way to be successful, it certainly is not the only way.
The fact is you can also be as successful as you want, by focusing only on a few cases and ensuring that through your ingenuity, creativity, and hard work, you maximize the recovery of each one of those cases. It involves getting to know your clients, your documents, and your witnesses. It involves really coming to know the law and staying on top of its development, by being a lawyer not a claim processor with a law degree.
It means an unrepentant, full frontal, spread eagle dive into being your best. And while I don't know how personally rewarding high-volume practices are, I can assure you that a low-volume practice, that allows you to use all the gifts the universe has given you, to make the practice of law your art and your weapon, is a great way to spend your time on earth.
Dale Swope is managing partner of Swope, Rodante P.A. which is the development of the solo firm practice he founded six months out of law school, in 1979. Swope is a Tampa native, and a graduate of Hillsborough High School, the University of South Florida, and the University of Florida Law School. The firm’s most senior lawyer, Mr. Swope has received virtually every professional recognition available to lawyers who practice in his field.