You may catch me doing it at any time of the day, but my favorite time of all is right before lunch. I slip into a spot in one of the back rows of the courtroom and try to be as quiet as I can be, but once in a while, I cannot help myself and let out a bit of a groan or a laugh. That is what happened a few weeks ago. The noise got a second chair’s attention; he came back and asked if I were the appraiser they expected to testify later that day. “No,” I said, and with quiet apologies to Chauncey Gardiner in the film Being There, I added, “I like to watch.”
I have been watching lawyers for more than 35 years. The practice has brought me episodes of confusion, frustration, and wonder, but more so than any seminar, webinar, or program, it has been the most productive element of my continuing legal education since passing the bar. The fact is, for me at least, every lawyer I have seen at work, whether my supervisor, subordinate, co-counsel, or adversary, has contributed in some way to my mosaic of legal experience.
When I started as a new lawyer in a large firm, constructing my mosaic was easy. I was surrounded by highly experienced and talented litigators. Each seems to have his or her own style. Some were very scholarly, while others strove for a common touch. A few were distinguished in exploiting the rules of practice on the unsuspecting, while others gave the same rules only minimal regard and kept a strategic focus. Some chose to write in direct and sparse language; others chose a more elaborate briefing style. I was so fortunate to see such a variety of ways to practice law and not be compelled to take one approach over the others. This was when I began selecting the large tiles of my mosaic: how to compose a memorandum, make an oral argument, conduct a deposition, and prepare for a trial. It was also when I learned that being a good lawyer means that there is rarely, if ever, only one way to approach a case or protect a client’s interest.
After ten years, I went out and formed my own law firm. My mosaicking had to change. Rather than simply receiving sample tiles by virtue of being a junior lawyer, I had to manufacture some of my own. In doing so, I built on my experience to come up with some techniques to deal with the challenges of solo practice. The furnace for these pieces of my mosaic usually was fueled by the constraints of time and money. Sometimes, those pieces got chipped or smashed by opposing counsel who thwarted my plan or a court that ruled against me. In a way, those shards of failed stratagems and interpretations were the most valuable pieces of all. They helped to remind me that as I acquired knowledge and experience, I still was far from having all the answers, and my mosaic was hardly complete.
Most recently, especially as my court time has declined in our post-pandemic world, I have been making my trips to the back of courtrooms to watch other lawyers. Rather than returning to the office after I have finished an argument or settlement conference, I try to find one or two cases to observe before I depart. These days, I am more discerning as to what gets added to my mosaic. Most of what I observe nowadays embellishes one of my existing tiles, but it still adds to the overall picture. I do indeed like to watch lawyers.
I therefore encourage you, wherever you may be in your career, to watch lawyers and gather a few tiles for your own mosaic. You may catch me working on mine just before lunch in one of the back rows of some courtroom.
