Although experience is the best teacher, it is also the hardest teacher. In our profession, the things you just know cold most likely are the ones you learned the hard way through your own mistakes. You also tend to remember the lessons learned from commiserating with your best buddies when they were the ones with the bad experiences. And then there are always the things that you read about over the years in the newspaper, the bar journal, or some legal tabloid. From these lessons learned, old battle axes have a reservoir of useful information about what to do and not to do to avoid the common and sometimes uncommon pitfalls in our line of work. Seasoned lawyers often try to pass down words of wisdom to younger lawyers in the hope that the young ones will be able to avoid some of the headaches we have experienced. What follows is a list of these bits of wisdom that have been accumulated from a number of wise lawyers over time and, unfortunately, from some of the things we learned the hard way.
February 14, 2011 Articles
Avoiding Common Pitfalls: Tips For Young Lawyers
Here is a list of bits of wisdom that have been accumulated from a number of wise lawyers over time and, unfortunately, from some of the things we learned the hard way.
By Betsy P. Collins, Ian Fisher, and Kent Lambert
- When a partner assigns you a project, don’t be a robot simply following the explicit directive and not exercising independent thought. Instead be like a little mouse in a maze: If you hit a dead end, think creatively and use your brain to figure out another way to find the cheese. When you report back to the partner, even if you didn’t find precisely the answer hoped for, he or she will be more than happy that you figured out a different answer that reaches an equivalent end result.
- When a partner asks you for a draft, don’t take that too literally. Chances are he or she does not want to see a draft with a lot of blanks and misspelled words.
- Do not make careless, inexcusable mistakes like citing caselaw that has been overruled. It will be bad enough if only the partner figures it out, but worse yet if he or she does not and the brief goes to the judge, who figures it out. Your greatest asset is your credibility and if you lose it, it’s hard to regain.
- Do not be a slave to forms. For example, when you are drafting an answer, really think about whether you need all of those defenses. You need to know what they mean and how they apply to your case before you use them.
- Learn to dictate legal work rather than always composing it on the computer or writing by hand. It helps you to learn to organize your legal thoughts in an oral form.
- Don’t just research from the computer. Whenever possible crack a book open because that’s a great way to continue your legal training. Many older lawyers believe that when you are reading in the digest or a treatise, it broadens your perspective because you run across other things, many of which may trigger a different or better creative solution to your problem. The hyperlinks that show up in the margins of some legal research services can also help you in this regard. Don’t be afraid to click over and read a bit more generally on related topics.
- When you do computer research, don’t just rely on sound bites you took from a blurb on the screen. Read the case and make sure it applies before you cite it.
- Always understand the procedural posture of the case you are citing and whether a difference in the procedural posture affects your argument.
- Don’t just cite authority by using parenthetical remarks. You need to learn how to analogize a similar case and be able to explain why the same reasoning should apply to yours.
- For goodness’ sake if you do use citations with parenthetical blurbs, make sure you aren’t being inaccurate or too coy.
- Check the pattern jury charges that apply in your jurisdiction. That is a great way to find the black-letter law so that you can plead your own case better and you can see if opposing counsel has failed to adequately plead his or hers.
- Read the rules of civil procedure religiously. Always verify what you think the rule is. They change those things on you from time to time.
- Never go to a partner’s door and ask a question that you could have easily answered by simply looking at the rules of civil procedure or similar rules.
- Learn the laws that you are going to be using over and over in your practice area. For example, if you do commercial litigation, be familiar with the Uniform Commercial Code (UCC).
- Be a good communicator. Keep your partner informed, but don’t bury him or her in minutia.
- Don’t commit to deadlines you cannot keep.
- Don’t lie.
- Don’t trust everything opposing counsel says. Read all of the cases opposing counsel cites in his or her brief and verify that excerpts of testimony are not taken out of context, etc.
- Build rapport with opposing counsel. This is good for the profession and it’s good for you. You might need a favor one day such as a deadline extended, and it’s a good thing to at least be on a somewhat friendly basis with him or her. Also, those folks you somehow offend often end up being on the bench or in-house with some corporate client.
- Keep the golden rule. Treat others like you would want to be treated. If you play hardball all of the time, you’d better be ready to be perfect yourself so that you don’t ever need a favor.
- Always be thinking about whether there might be an insurance policy that applies somehow. Don’t assume someone else in the case has already thought about it. You can get around many policy defenses, but notice is a critical area to avoid.
- If you screw something up, don’t try to fix it yourself. As bad as it may seem, you just have to fess up to the partner and get his or her advice on how to proceed. Often an older lawyer has better perspective on how to get out of that ditch.
Betsy P. Collins, Ian Fisher, and Kent Lambert are chairs of the Pretrial Practice & Discovery Committee.
Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).