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August 05, 2013 ABA Journal Podcast

What you don’t learn about trial work in law school (podcast with transcript)

By Stephanie Francis Ward

You’re a newly minted lawyer and you’re off to the courthouse for your first proceedings–and you have no idea what you’re doing. What’s a newbie lawyer to do?

First off, make friends with the clerks, guests tell the ABA Journal’s Stephanie Francis Ward. And remember: Your job is often more about listening than talking.

Listen to the Podcast

Podcast Transcript

Stephanie Francis Ward: What’s one of the most important things about being a lawyer that they don’t teach you in law school? I’m Stephanie Francis Ward, and when we return, my guests Ron Minkoff and Fran Hoffinger will tell you about a variety of things you should know about practicing law, but you probably didn’t learn in school.

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Stephanie Francis Ward: When you go to the courthouse, you can get your filing done in about an hour or you might be there all day. What are your thoughts on finding ways to get things done efficiently and effectively at the courthouse?

Fran Hoffinger: Well, first of all, now that things at least in New York are e-filed, it actually saves a certain amount of things. But I have learned literally my first day of working that you need to always make friends with the clerks and the court officers, because if you need to know something, then the clerks are the ones who will tell you how to get things done. The other thing I recommend is that everybody get a list of all of the sorts of clerks’ offices. For example, there’s a matrimonial support office. There are various clerks and they’re little low staffed now, but very often you could actually get somebody on the phone to tell you how to do something.

So now there’s more ways. There are also online forms for example. Some of them give instructions as to how to do things, but the biggest thing is to have somebody in your office–if not you–go down to whatever courthouse you’re dealing with and check out where the clerks’ office is, what are the various offices for. Most of us who have staff, we don’t even do that anymore. I mean, am I right, Ron? You don’t run down and file stuff yourself anymore.

Ronald C. Minkoff: No, I know, but you know, I started out doing it. I was a legal aide in legal services at the beginning of my career and you know, what Fran’s saying is absolutely right. You have to make friends with the clerk, and the other key thing is to treat them with respect. I’ve seen a lot of lawyers treat clerks like they’re the hired help, which is a really big mistake. They react very badly to that. And never lose your temper with them no matter what, no matter how provoking the situation is or no matter how much pressure you feel yourself under. They just don’t react well to that.

So you have to keep your cool. You have to treat them with respect. If you’re going down there frequently, you become friends with them in various ways, non-corrupt ways and they’ll help. They really do view that as part of their job and they will help you.

Fran Hoffinger: One thing that I think that new lawyers don’t realize is that court officers usually graduate into clerks, so I always make friends with all the court officers. When I say “make friends,” the same as “Ron, hello, how are you, good morning.” Always greet people. That’s always nice. I was also a legal aide, so I tended to see the same group of court officers for long periods of time, because I was assigned to particular courtrooms, but nonetheless, every courtroom I go into, I greet everybody. I always say hello. I always introduce myself to the clerk in the court, but I always am very cordial to court officers.

Most of them know me by name. I know them and these are the ones that I dealt with, because I notice now that the people that I knew 15 or 20 years ago, they’re now the clerks and it’s wonderful to be able to go in and have a clerk who actually knows you–or even just for members, as Ron said, who know you, who say, “oh, I remember, this person was very polite to me and very nice to me.” They’ll be helpful, and if you go in with pointed questions and not waste anybody’s time but have a little, are a little organized about it, it makes things even easier.

Go with a specific question. I need to get this file, how do I do it? It’s not that difficult but you need to know who to ask. I find the biggest thing is who do you ask at this point, not where do you go.

Stephanie Francis Ward: Do you think that’s important for recent law school graduates who are starting to go to court to remember: It’s okay if you don’t know, and it’s okay to ask a question if you do it in a kind way and you’re not wasting someone’s time?

Ronald C. Minkoff: That’s why they call it practice. You’re not supposed to know everything. After 30 years of doing this, I still don’t know everything and being unafraid to ask questions is very important, because there are people who do know, and you have to know when you don’t know and you have to make sure you’ve done your homework and just like you have to know the rules of the court that you’re in. You have to read them. You can’t assume that they’re the same, that the rules in one courthouse are the same as they are in another courthouse.

In our New York system, particularly, which is so balkanized, you just can’t assume that the rules in the commercial part of the Supreme Court are the same as the rules in the non-commercial part of the Supreme Court and the family court part or any of the others. They’re all slightly different, so you know, you have to familiarize yourself with the rules and not be afraid to ask questions if you’re not sure.

Fran Hoffinger: I just want to jump in. One of the things that’s very different from when Ron and I started practicing and those of us who are in practice–he’s been practicing a little longer than me, but we’ve both been practicing for a pretty long time. Everything now is online. In the past, I’d say five or six years at least that I’ve noticed, all of the court part rules are online. And again, knowing sort of where to go and what to do–so for example, not only are there commercial part rules, but individual judges have particular rules and you can find them. In New York, for example, you can find them at the Office of Court Administration’s site.

There are places to find, and it’s a good idea to know those things before you deal with the actual clerks themselves. Because then at least you’d have some idea of where the questions are, and a lot of those questions are already answered. So in some ways, it’s easier in the computer age to do. When Ron and I started, you’d have to go to each part to get the rules. Remember, Ron? Somebody down to get this judge’s rules because they would have them Xerox-ed but that would be it.

Stephanie Francis Ward: If you’re going to file something online and you’re pushing up against a deadline, how much time should you give yourself, in case there is any fiasco trying to file online?

Ronald C. Minkoff: Well, you know, it’s getting better and becoming more efficient as the court system learns how to do it. Federal court is very smooth now. State court here in New York is getting better. So, you know, it’s getting easier and the fiascoes happen less and less. But if you’re still learning your way on how to do it, you really should give it some time: a day in advance or at the very least, in the morning rather than in the afternoon, so that when things get bounced–they will, you know–you can re-file them.

Usually though, even when things get bounced, nobody will hold it against you. The first filing will often be sufficient to satisfy everyone. They’re pretty forgiving about that most of the time, but again, it’ll depend on which courthouse you’re in.

Fran Hoffinger: I’m with Ron on that. I was just going to say our experience is that I never also leave everything to the last minute, because I’m also neurotic. What if, you know, what if there’s a power outage? What if our computer’s are down? I don’t wait until the last minute, but what I want to say is that right now, it seems when it first started,there was a big lag particularly on the federal system. I noticed that if you filed something, you might not get confirmation about it for several hours.

So when we were doing a lot of filing on the federal system, we did ours early, just as Ron suggested. We did it in the morning, so that we could make sure that they got filed. My experience with the New York City courts right now, the state courts, is if you file something, you get confirmation very, very quickly and so you would know very quickly whether or not there’s a mistake. Maybe I’m wrong. Maybe I’ve just been filing at the right times.

Ronald C. Minkoff: I’ve worked with a lot of lawyers over the years and some of my current partners, some of my past partners were people who were, had a very different way of doing things than I do–which was to wait and is to wait until the last minute to get things done. And you know, the great lawyers, some people just need to kind of, like, wind up and wind up and wind up and then it all comes out and they give you an amazing product right at the end, right at the deadline.

The problem with doing that is that if there’s something missing, you’re scrambling to fix it with very little time to do that and that puts you in a bad place. So one example that comes to mind is I had a colleague who, very good lawyer, he gave me something at the last minute and I realized reading it that she hadn’t found a particular line of cases that we needed to have in there and we were scrambling around to find that in like an hour. We only had an hour and we didn’t find what we were supposed to find and it ended up coming back to haunt us.

It was there but our failure to put it in our papers ended up becoming a problem. So doing things at the last minute is always dangerous. Filing things at the last minute is always dangerous because it’s just increasing your risk threshold.

Stephanie Francis Ward: Okay. Let’s switch gears a bit. I wanted to ask you guys and this is admittedly a broad question but I wanted to talk about litigation strategy and I suspect most of litigation strategy becomes pre-trial and I don’t think they teach much of that in law school, at least not in most law schools. Ron, do you have just a basic tip or can you sum up real quickly how young lawyers can get better at litigation strategy and give you the best results for their clients?

Ronald C. Minkoff: Well, you know, so much of it is based on experience that it you know –

Stephanie Francis Ward: Do you think that some of it comes to people naturally perhaps, some people have it, some people don’t maybe? You always get better.

Ronald C. Minkoff: You always get better and frankly, well, I’ve known people who are sort of natural trial lawyers in terms of standing up and being able to ask questions. I haven’t found too many people who are just natural strategists because it requires, there are so many variables involved in strategizing. To me, everybody has a different style but for me, what’s always worked is to be a better strategist is to get in touch with the law that covers the case first.

To understand what it is that you need to prove or disprove, to understand what the cases say so that you can make good decisions and start to strategize and think about the case that way. You can’t intuit your way through cases especially when you’re a young lawyer because you just don’t know enough to intuit. So you have to get in touch with the substance of case law and the procedural law that you have to know. You have to know the rules and you have to know what the cases say and for me, that provided sort of the baseline that I would use to start creating strategy.

If I looked at the complaint and saw there might be a statute of limitations issue. Go and find out what the statute of limitations is when it starts to run and all of that and then I start to develop the strategy around how am I going to establish that defense. I think that’s kind of a starting place. Other lawyers start with the facts, you know, they want to know everything and then they’ll figure out which from a factual standpoint, what they want to emphasize and what they don’t want to emphasize.

My problem with doing that is that’s okay if you have at least some basis in the law, understand the basic law in the area that you’re talking about but if you don’t, you’re going to have a hard time making a strategy that’s going to work without knowing what the law says but to develop your strategy, you know, start with the law.

Stephanie Francis Ward: Fran, what do you think?

Fran Hoffinger: In criminal work, everything’s done in a short time frame and unlike in a civil case where you can get extra time for certain things. In criminal cases, you’re much more limited. You have a court whose judge is really on top of you. You have issues of speedy trial and you may have a client in prison and you’d like to get your client out of prison as quickly as possible so you have to hit the deck running right away. So what generally happens in criminal cases and strategizing is slightly different because the first thing you need to do is you need to find out what is your client charged with then you need to find out what is the law.

You can go back and look at the statutes to see what’s your client charged with so it’s not that different in terms of familiarizing yourself with the law but in criminal cases very often, your next step is to go speak to the prosecutor. So you have that added step in there. I have to tell you, I don’t know how you tell somebody, I’m with Ron on this; how you tell somebody how to strategize. I’m going to tell you that my advice to younger lawyers is know the law, know the facts and try to attach yourself to an older lawyer who can show you around to some extent and listen in.

I learned a lot of what I learned from lawyers who are more senior than me. I couldn’t have learned everything by myself. I listened, I watched, I paid attention. I participated but very often with an older lawyer including when I was a legal aid, we first started by being attached to older lawyers so you have to keep an eye out and watch what other people are doing and in terms of the actual thinking, well that develops because of what’s going on.

Sometimes what you strategize early isn’t really going to be what you end up doing in the end because sometimes you find something out in the middle that changes things so you need to also keep an open mind about strategizing.

Stephanie Francis Ward: What advice, I’m dealing with difficult clients, you want to be the best lawyer you can for them but you don’t want to get too wrapped up in their personal problems. That might not make you such a great lawyer for them.

Fran Hoffinger: Well, it depends on what the case is. If you are, there are cases where unfortunately you are wrapped up in their personal problems. For example matrimonial cases, you really are wrapped up in their personal problems.

Stephanie Francis Ward: But would you agree you have to set some kind of boundary.

Fran Hoffinger: Well, I think what happens is it goes back to you have to listen and see where your client is on a lot of things. One of the things that I found is that in criminal cases, you’re not dealing with emotion is some ways. You’re dealing with, in some ways, how do I help this person and maybe save this person’s life. So it’s a different focus. In civil cases, in the matrimonial cases for example, people are upset. They are upset particularly if they’re personally named or they’re sued personally or you know, you’re in the middle of a partnership fight to partners who’ve been together for 30 years, are breaking up, and they’re suing each other over whatever.

There is a certain amount that you have to let them unload and then you have to at some point put the stops on it. So I think for me, I’m just using a matrimonial case as an example, I listen to a certain amount of it and then I’ll try to direct the client towards something practical. Say okay, I know you’re very upset about this but let’s figure out how we can turn this into an advantage in something.

So you have to, you do have to kind of nudge them and every once in a while, I’ve had people who spent a long time telling me, really kind of emotional things and very often what I do is I say to them are you, do you have a therapist because I think that a lot of this is stuff that you’re going to have to work out, that you should probably be working with your therapist and then we can come up with a way to focus it here.

You know, you have to be careful because sometimes clients really do need to talk and it’s hard to figure out when to scare them off. It’s not a good idea just to say I can’t deal with that go somewhere else because then they don’t feel like you’re listening to that but you have to feel your way through and it’s not an easy thing to do.

Ronald C. Minkoff: Boundary issues are something that I personally struggled with forever ever since I started to practice. I tend to represent people as a professional responsibility lawyer, before that as a criminal lawyer, people whose lives are in turmoil, whose careers are in jeopardy, whose law firms are in jeopardy, whose marriages are in jeopardy and whose best friendships are in jeopardy, whatever it is and so it’s a very emotional situation and it requires you know, some careful handling and the key for me has always been to try to walk the line between being there for them emotionally and available for them so that they know that they have somebody who’s on their side and who understands where they’re coming from and also still being objective enough to be a good lawyer, a good legal advisor for them.

Because sometimes, you have to understand when they’re just BS’ing you or what they’re saying is just isn’t true and they want to get you into their world view which is kind of dangerous.

Stephanie Francis Ward: I think there’s also a bit sometimes, you can tell a client something ten times and he or she may not listen. Sometimes it’s not that they don’t hear you. It’s that they don’t want to hear what you have to say. What are your thoughts on telling your clients what they need to hear even if you don’t want to, you need them to take it in and take your advice?

Ronald C. Minkoff: Well, you have to keep working. It’s like look, this is about persuading people and you know, that’s our job as lawyers is to persuade people whether we’re negotiating or whether we’re litigating or whatever and sometimes our job is to persuade our clients and sometimes you can and sometimes you can’t. Every lawyer has been in the situation where they want a client to take a settlement and the client won’t.

Yesterday I was on a call with a client who’s you know, being sued for not all that much money and can get rid of the case for substantially less and yet he’s so angry at the fact that he’s been sued and that his co-defendant isn’t being cooperative, that he won’t even consider getting rid of this case for a relatively small amount of money involved and you know, and he keeps saying you’re not looking at it from my point of view and I’m saying I am. I’m trying to protect you from spending a lot more money than you’re going to end up spending just to get rid of this and to get rid of the aggravation but you know, they want to keep fighting.

So sometimes, that’s part of it and you also have to know when to quit. You have to know when you know, the client has the right to make a decision. It may not be the best decision but it’s their decision and you have to know when to back off. All of those things are things that take time to learn but you have to recognize that this is, that you’re most successful in this business if you’re more a yes person than a no person in dealing with your clients.

Fran Hoffinger: Actually, this really depends on what kind of case you’re dealing with because for example, if you’re representing a company in a criminal investigation or a potential investigation, you do have to say no because you have to say that you can’t do X, Y, and Z. There’s a certain amount of knowing there, just knowing there where to say okay, these things you should not be doing, these things you cannot do, etc. So that’s sort of a quasi-criminal or criminal situation.

I’ll tell you, I rarely push clients about settlements in civil cases because I feel like that’s a very hard area. I kind of, that’s the hardest area in some ways to push them and then they ask my advice and I’ll give them my advice but the settlement I generally just personally tend to back off a little bit and let the clients make the decisions even though I very often will suggest to them you know, it’s probably a good deal and the reason I say this is because that’s dealing with money. When you’re dealing with other issues for example in criminal cases, I’m much more I think firm and about suggesting to clients about really spending a huge amount of effort if the situation were I think, it will save their lives, really help them, whatever.

I just find that in criminal cases for example, clients want to get the cases done as quickly as possible because they’re under indictment. They’re under; they’ve got criminal complaints against them, whatever it is. In civil cases, just as Ron said, there is this other psychology that goes on and sometimes people don’t want to let go. They’re so into the fight that they don’t want to let go and you also have to understand the psychology of the adversary because the other person or the other party or whatever, they have the same anger or whatever and so you kind of have to understand both sides and very often in civil cases as Ron says, people don’t want to let go.

Stephanie Francis Ward: All right, and that’s everything I have for you today. Thank you so much for your time, I really appreciate it.

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Updated on Aug. 15 to fix a typo.

In This Podcast:

Stephanie Francis Ward
Fran Hoffinger is a partner with New York’s Hoffinger Firm. A litigator, she does civil and criminal litigation work.

Ronald C. Minkoff, a litigator, heads the professional responsibility group at New York’s Frankfurt Kurnit Klein & Selz PC.