Practice Tips for New Lawyers

13 THINGS YOU MIGHT NOT LEARN IN LAW SCHOOL

 

Whether you represent government clients or private clients, there are certain strategies to practicing law that you might not learn in law school. Understanding these and keeping them in the back of your mind will improve your practice anywhere. These are 13 things you might not learn in law school.

 

1.​Research creatively.

 

The foundation of any good attorney work product is thorough legal research. But good legal research involves more than just typing a bunch of search terms into Westlaw or Lexis, printing off cases and journal articles, and Blue Booking them to perfection. Yes, you need to do all of that. You need to look at every relevant case, and every case cited in those cases. But in doing that, you need to think carefully about the facts of each of those cases and how those facts differ in meaningful ways from the case you’re working on, including—and this is important—the procedural posture and context those cases were decided in. And often, you need to go beyond the case law. You might need to research legislative history by studying prior versions of legislation and legislative hearings. You might need to go into old files in your office that may have records you need. You might need to look at similar cases involving the same litigants that may not be reported on Westlaw or Lexis, or that only exist in a trial-level court file somewhere. You might need to delve into the commentary on the court rules or study the local rules of the court you’re in. You might need to go online to many other sources aside from Westlaw or Lexis. That’s researching creatively.

2.​Write like an advocate.

 

When you brief the court, you need to write like an advocate. Writing like an advocate does not mean ignoring the weaknesses or bad facts in your case. This is important-you can never get away from bad facts. They are what they are. But advocacy means underplaying or distinguishing those bad facts and weaknesses in favor of your case’s strengths. An advocacy brief is not a bench memo to a judge, a research memo to a senior attorney, or an advice memo to a client. It should not be neutral in tone or expose/attempt to reconcile every hole and problem in your case. Advocacy writing showcases the strengths of your case, and why you should win. Every time you write a paragraph in a brief to the court, whether it’s a minor motion or an appellate brief, read it back to yourself and ask yourself two questions: (1) “how doesthis paragraph advance my client’s interests?”; and (2) “will this paragraph give the judge a reason to rule my way?” If you can answer “yes” to those two questions, you are writing like an advocate.

 

3.​Think strategically.

 

Thinking strategically means taking the long view of your case. Being strategic doesn’t mean playing games or being conniving. It means taking a close look at the chessboard. Think about how each thing you do on a case may or may not yield a certain outcome down the line. If you are a visual learner, draw a decision tree of options and ways things could play out. Think about your theory of the case: what is the case about in one sentence? What does it all boil down to? What are you trying to accomplish or convince the judge of, other than that you should simply win? Even if you do win, what will be the final outcome for your client? A Pyrrhic victory is not always a good thing. Think broadly and strategically about your case—not just how to write the perfect sentence or achieve small victories along the way. Sometimes a small concession will yield a bigger victory down the line. Thinking strategically about your case in a broad sense will help you determine the smaller procedural steps you need to take to get to the best result.

 

4.​Know your enemy & know your audience.

 

Do opposition research. Opposing counsel is not your friend. The judge is not your friend. Read and find out everything you can about your opposing counsel and your judge, including what they have written and how they have behaved in other cases, so you know who you are dealing with and what you can expect. Talk to other people who have dealt with opposing counsel or who have appeared before the judge in your case. In a similar vein, the people you work with--your clients, colleagues,and superiors can be your friends—but they are your clients, colleagues, and superiors first. When you’re writing to these audiences, obviously you are not writing an advocacy piece the way you are when you write to the court, but you are always writing clearly, concisely, and professionally in service of your clients’ interests, and that brings me to the next point:

 

5.​Project confidence—not bravado.

 

There is a difference between confidence and bravado, and senior attorneys and clients can tell the difference. Confidence comes from having done your homework and preparation and being as sure as you can be of the answer.  If the answer isn’t clear, and it often isn’t, you can still be confident in even that conclusion. Bravado comes from being insecure and afraid and investing too much of your own ego in your practice. In addition to being transparent, indulging in bravado will cloud your judgment and prevent you from getting to the right answers to a legal problem. When delivering an answer to a legal problem to a client or senior attorney, or when arguing before the court, always project confidence, which means acting capable. But don’t pretend you know things you don’t know.  Don’t be afraid of simply saying some version of: “I don’t know the answer to that at the moment, but I am confident I can find it out, and I will get back to you ASAP.” Clients, senior attorneys, and judges will appreciate confident candor and a right answer later a lot more than they will appreciate bravado and a wrong answer now.

 

6.​Find a mentor, or ten.

 

There are people you will encounter in your career whom you admire and want to emulate, and who are good role models and mentors. I can rattle off about ten different people who have been mentors for me. Identify these people early on and cultivate relationships with them, if they are willing to reciprocate. Bounce ideas off of them. Run drafts of documents past them. Seek their professional advice whenever you can.

 

7.​Observe constantly—including yourself!

 

The reality is there are terrible lawyers and there are great lawyers, and there’s everything in between. Everyone has different strengths and weaknesses as a lawyer. Observe as many lawyers as you can and get a sense of their style. Think about what they do that you want to emulate. What do they do that you want to avoid? Read as many motions and briefs as you can. Attend as many hearings, oral arguments, client meetings, moot courts, depositions, and trials as you can, so you can figure out mistakes you never want to make and things you always want to do. And you want to be observing yourself as well. For example, onething I always like to do is order the CD of oral argument from the court after I have an oral argument. Oral argument is probably one of the things I’m the least comfortable with, so I like to go back and listen to myself and the judge to improve my oral advocacy and see what worked and what didn’t.

 

8.​Ask questions.

 

Often a client or senior attorney will rattle off a list of demands and questions at a mile a minute. You will sit there scribbling away, and go back to your desk and realize you only wrote down three legible words of what they said. Don’t be afraid to go back and ask for clarification—multiple times if necessary. You will feel stupid doing this, but you shouldn’t. What’s stupid is to embark on a huge project not knowing what was asked of you. Make sure you have a good understanding of what is being asked of you and realize you may not gain that understanding during your first conversation on the topic. 

 

9.​Own your mistakes.

 

Everyone makes mistakes in practice. For example, you might send confidential discovery or an email to someone who shouldn’t have received it or you might forget a court deadline or a discovery deadline. If you make a mistake, admit it quickly and seek help fixing it if necessary. Don’t paper over mistakes or pretend they didn’t happen because you’re embarrassed or you think you’ll be able to hide it. Most of the time, you shouldn’t be embarrassed and you can’t hide it. Pretending otherwise only makes things worse. Practicing law isn’t brain surgery, and unless you’re a capital defender, no one is going to die because you made a mistake. (Even then, a mistake you make probably won’t kill your client). There are very few mistakes in this profession that can’t be fixed or remedied in some way or other. The best thing to do when you realize you’ve made a mistake is to acknowledge it quickly to the client, court, or senior attorney and take whatever steps you need to take to fix it.

 

10.​Cross-examine your client.

 

A big mistake many new lawyers make is to accept their clients’ version of reality at face value. Avoid this at all costs. Accepting your client’s narrative harms your case and it harms your client’s interests, because the things they omit and leave out can ambush you later. What you don’t find out now, your opposing counsel will find out later. You have to get a little bit adversarial with your clients sometimes. You have to “cross-examine” them and question their conduct and what they’ve done in a given situation. They will get defensive, but don’t let that stop you from getting to the real facts, not their editorialized version of the facts.

 

11.​Create a paper trail.

 

If you are in court, or anticipate you will be, always be thinking about the record in your case. E-mail and letters can be your friends. Memorialize conversations with opposing counsel in e-mail or a letter, even when doing so is not required by the civil rules. If appropriate, memorialize privileged conversations with clients and senior attorneys (and mark them privileged and confidential, of course) so everyone is clear on what advice was given and what course of action was decided upon. If an issue of professional ethics arises in a case, consult with bar counsel or ethics counsel and do a memo to your file that you did that, describing the ethical issue and the advice you received on how to resolve it.

 

12.​Don’t reinvent the wheel.

 

If you’re a new lawyer working on a problem, chances are you’re not the first person to confront that problem. Noone gives a new lawyer an issue of first impression and expects them to crack it straight out of the box. In addition to all the traditional research methods, there are short cuts you can take that will not depreciate your work product. Every office has templates of motions, letters, etc. that have been used in various situations. Save yourself time and your clients’ money by availing yourself of existing resources to get the job done more efficiently.

 

13.​A draft is not a draft.

 

Anytime you give a client, senior attorney, or anyone in your office a draft to look at, it really shouldn’t be a “draft.” It should be the most polished, final work product you can produce. No one wants to read stream-of-consciousness ramblings or see typos or grammatical mistakes in a draft.