You are on your way to becoming the next great trial lawyer, but unsure of the best way to get there. You are not alone. Having had the opportunity to clerk for a federal court judge, I compiled a list of “do’s and don’ts” that may be of some assistance in this journey.
During my year-long clerkship, I saw the “good, the bad, and the ugly” in advocacy skills. However, regardless of skill level, I learned something from every attorney that appeared in chambers or in the courtroom. This, in fact, brings me to my first tip: always keep your eyes open, as learning opportunities abound each time you appear in court. Here are some additional tips to point you in the right direction!
- Always read the judge’s published guidelines, which are generally posted on the court’s website and provide essential information. For example, some judges still want hand delivered courtesy copies, notwithstanding e-file requirements. Other judges have stylistic preferences, such as larger fonts or only double-sided copies. Not complying with these individual rules can lead to an unhappy judge—which is never a good thing!
- Always check your citations—and then check them again. There is nothing that drives a law clerk—or a judge—crazier than an incorrect citation. It is difficult to take an argument, and the lawyer giving the argument, seriously when the clerk is unable to find your case.
- Read a few of the judge’s most recent opinions on the type of motion you are filing. Got a motion to dismiss? Check out the latest three decisions from the judge. This will give you both a procedural and substantive advantage in that, for example, you will know the judge’s preferred citation format as well what arguments he/she finds most persuasive. Of course, this is no guarantee that you will prevail, but it will certainly increase your chances of success.
- Be organized. Be on time to Court and make sure you meet all the filing deadlines. If you are late to a proceeding or miss a filing deadline, you hurt your client and your own credibility as a practitioner.
- Be prepared. Make sure you know the case inside and out. There should never come a time in a proceeding where you do not know the answer to a question you are asked. Make sure you’ve got it all together before you walk into court.
- Be nice to your adversary—as the old saying goes, “you catch more flies with honey than with vinegar.” A judge will be more understanding if you reach out to the other side on a discovery dispute before you file that motion to compel. Also, joint requests for extensions of time should be a common courtesy that you give other attorneys.
- Don’t show up late. I am repeating this to highlight its importance. The judge can (and in all likelihood will) be late. You cannot be. It sets a bad precedent if you can’t make a court proceeding on time. Even better—be 10 minutes early. On time is late and early is on time.
- Don’t ask the law clerk for legal advice or an opinion. A question for a law clerk should never start, “Should I…” In all likelihood not only will the law clerk be unable to give you an answer, he or she could be annoyed that you have even asked the question. Do your homework before you make the call. Law clerks do not want to hear from you until you have exhausted all other possible avenues.
- Don’t post on social media about the case or the judge. This may seem pretty self-evident, but it is worth mentioning. Judges go to great lengths to remain neutral and to stay out of the limelight. This includes keeping their photographs and decisions off social media. So even though you may have lost a tough argument in court that day, do not go home and post a new status about it—you are only hurting your own professional reputation.
- As tempting as it may be, don’t interrupt the judge, opposing counsel, or witnesses. This too may seem self-evident, but it's something that I consistently see. Constant interruption not only delays the proceeding but agitates the judge and prevents him or her from doing the job—whether it be fact-finding, deciding a motion or making any type of judicial determination. Lawyers are passionate about their clients and the legal issues of the case by nature, but you need to learn to curb that passion when someone else, whether the judge, your adversary or a witness, is speaking. Mutual respect can take you a long way in a court of law.
- Ultimately, don’t be discouraged if you lose a motion or an argument. Lawyers can be great advocates for their clients, but, as a result, sometimes lose the forest through the trees. You and your adversary both believe that you will win every motion and every case, but, obviously, there is always a “losing party” in litigation. Sometimes that will be you. I have yet to meet a lawyer who had a perfect trial record. Just because you lost once does not mean you should bury your head in the sand, either. Rather, learn from your mistakes and come back twice as strong so that you can win that next motion or case!
While this list is certainly not exhaustive, it does serve as a great starting point for how to hone your skills as the next great trial attorney. Remember that each day in court will give you new perspective in the profession and help you grow as an attorney. Keep your eyes open and your head up!