I appreciate my law school education. I was given the tools I would need to analyze and apply the law to a given set of facts. I had been brainwashed by lawyer shows on television and in movies to think that I had to be smooth. I relished the thought of catching my opponent in a mistake and slamming the trap at the perfect time, while the jury watched and nodded with approval. Then I started the practice of law. It is “the practice of law” for a reason, and I quickly learned what I consider to be the most important lesson for trial work.
Trial lawyers come in all shapes and sizes. Moreover, the different styles of trying a case to a judge or jury are even more diverse. Although we abide by the same sets of trial rules, statutory law and precedential case law, how we handle and argue from them varies greatly from one lawyer to the next. Trial work is intellectual mixed martial arts in that respect, where a boxer may wage battle against a wrestler.
What’s important about this is that, despite the differences in style, none are right or wrong. The efficacy of your style is dependent upon the jury, not your opponent. And I submit to you that your style is just as effective as anyone else’s, irrespective of the fact finder. This is something I did not learn in law school.
A partner of mine named Chris Lee served two tours of duty with the United States Army. When he tries a case, he is concise and pointed. He doesn’t waste words and saves objections for when they count. His “high and tight” haircut gives him away. He never has to inform the jury about his military service – it is easily identifiable by the manner in which he handles himself in court. In contrast, I’ve never been in the Army. I would never be confused with Chris. I use relaxed humor in the courtroom, where he uses laser-guided precision.
I worked closely with Chris before and between his tours of duty. When he was deployed, I tried to replicate his trial style. I cut my hair, sharpened my points and checked my lighthearted humor at the courtroom door. What I discovered was fairly traumatic: the same points being made by me didn’t have the same effect on the jury as they did when delivered by Major Lee. I learned that I am not, and will never be, Captain America. I am thankful it only took a few cases for this to sink in. After some mental healing, I began trying cases in my own style. The result was a more comfortable and more successful trial experience.
Those first few trial losses also taught me that I am neither better nor worse a trial lawyer than my opponent, no matter how many years of experience he has. This was a fact that was hard for me to internalize. Up to then, I assumed that everyone else knew the answers to the questions still rattling around in my head. It was then pointed out to me that both lawyers in a dispute operate from the same facts and the same law. It is a comforting thought.
I’ve been practicing law for only 10 years. I’m hardly what one would call a wily veteran. However, I’ve been given the opportunity to try more cases than most lawyers my age … mostly because of Major Lee’s military service. I only wish I would have found the comfort of trying the first few cases in my own skin rather than feeling the pressure of wearing someone else’s.•
Gregory Freyberger is a partner in the Evansville firm of Kahn Dees Donovan & Kahn and is on the board of directors of DTCI. The opinions expressed in this article are those of the author.