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March 22, 2021 Articles

Play Nice and Be Prepared!

A review of Cecil C. Kuhne III’s “Questions & Answers for Litigators.”

By Nick Sorensen

As a young, recently barred attorney, I came to the rather quick conclusion that while law school and bar preparation had taught me the law, I still had a long way to go in learning how to be a lawyer. So, since that realization, I have spent time cutting my teeth learning the trade, finding guidance and counsel from mentors, and using other resources to shed light on what is and what is not good practice of the law. One such resource is Cecil Kuhne’s new book published by the American Bar Association, Questions & Answers for Litigators (2020). This short but concise and meaningful work, reviewed below, encapsulates several of the important traits good lawyers, particularly litigators, must have.

Kuhne’s book and its key messages apply to litigators of all stripes and experience, so while I write this from the perspective of one fresh in the law, any attorney, no matter their experience, can take the key concepts of this book to heart. (In my first year as an attorney, I have worked primarily in a litigation practice, so consider me a “baby” litigator.)

The author emphasizes two recurring concepts throughout the book: play nice and be prepared. Although they sound like a Boy Scouts’ motto, Kuhne makes an effective case throughout his work for the essential importance of these two themes. The perspective used by Kuhne when making these two points, and others, was from that of a judge, and it covers the proceedings of a case from the first filing all the way through to the final appeal.

The importance of being prepared may be common knowledge, but the importance given to “playing nice” may not come to attorneys as naturally. As attorneys, we serve as advocates for clients in adversarial settings that give rise to judgments and verdicts that at times can feel like wins and losses. Many, if not most, of our colleagues in the profession tend to be competitive and type A people. This is not to say that I found myself or other lawyers to be impolite or uncivil; rather, at times, I agreed with concepts of standing your ground and not giving an inch to support your client’s position, or the depiction of lawyers grandstanding with an air of showmanship when making objections at trial. Being a hard-nosed bulldog, so to speak, may satisfy a client, but it often will not persuade the decision maker, as Kuhne artfully explains. It is that perspective from a judge or jury that Kuhne uses to explain the importance of respect, honesty, flexibility, and civility in the profession.

From the beginning to the end of a proceeding, I have noticed, even in my short time as an attorney, that many clients often expect lawyers to just “fight everything.” I have sat as cochair in cases in which a client will be quietly seething in anger because my co-counsel failed to shoot up and yell an objection out of place over a statement of little consequence an adversary’s witness has made. It is situations like this, or where a client wishes to dig in and fight service or object to nearly all discovery requests, that Kuhne points out are forms of conduct that may annoy, offend, and even repel a judge. Naturally, it is the judge, or the jury, rather than the client, that ultimately decides the outcome of a case. Writing as if he were a judge, Kuhne explains that civility, honesty, and integrity are the winning qualities of respected advocates before a tribunal.

From the pretrial conference to the oral argument at appeal, we as attorneys are constantly in the eyes of judges who have the power to make or break our cases. That is why the favored traits of civility, honesty, and integrity that Kuhne says judges love are so important. Knowing how often a litigator comes in contact with a judge, even with the decreasing number of cases going to trial, the ability to create a good and ethical reputation with the members of the tribunal is certainly a compelling argument that Kuhne makes.

The second key takeaway from this book is the importance for attorneys to always be prepared. Now, this is something that I believe applies to all careers and walks of life, but its role goes beyond just writing briefs and making opening statements. For a young attorney, trying a case and appearing before the court can often be an intimidating experience. However, I have found from personal experience that preparation has been the best medicine to quench pre-appearance nerves. Knowing your case inside and out is something Kuhne recommends for treating those pretrial nerves. And of course, there is the fact that your client, and the judge, will look favorably on strong preparation too.

The final takeaway from this book is the importance of brevity. In law school, there is often a mentality that more is better. We have exams as 1Ls, after all, that feel like marathons to find every single bit and piece of law and analysis we can pull from the deepest and darkest crevices of our minds and place it onto the page. Tests are often graded on how much you can include, and therefore we tend to word-vomit as much as possible, hoping we stuck enough points to the page to beat the curve. However, legal writing is not test taking, and Cecil Kuhne explains that while courts may often give page maximums on briefs, one neither need nor should ensure all space is used.

Falling back on the perspective of a judge, Kuhne explains that less is often more in a world saturated with case backlog and stretched-out proceedings. Juries, on the other hand, are bored by legalese and wish to understand and relate to cases in terms that resonate with their own lives and experiences. It is for these audiences and reasons that Kuhne encourages legal writers and speakers to cut out the legalese, speak in plain English, and make every word count. When speaking, we often have crucial time limits that long case descriptions and legal jargon can consume. When reducing the verbose, it is more important to ensure good organization that provides a road map for why your client should win. The importance of brevity and concise writing and speaking can never be restated enough (yes, I know even that is a little counterintuitive). For those reasons Mr. Kuhne’s sentiments on brevity are universally beneficial to all attorneys.

Overall, Questions & Answers for Litigators is a good resource for all attorneys. It is a concise, engaging, and easy-to-read book, which is ultimately what it tries to teach lawyers to do with their own writing. The law is a challenging profession in which one never stops learning, and this book proves to be packed with answers. Now, go play nice.

Nick Sorensen is with the Austin Law Firm in Raleigh, North Carolina.

Copyright © 2021 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 Litigation Section, this committee, or the employer(s) of the author(s).