After nearly 18 years in the private practice of law in civil litigation for the defense, I take this opportunity to provide survival tips and lessons learned. Whether you are new to the practice of law or nearing the end your career, it is my hope that you will find these useful. Five are from clients, five from courts, five from counsel, and three from yours truly for you to keep in mind during litigation.
1. Know the client. To provide valuable service, you need to know what the client wants and have some mutual understanding of how you propose to accomplish the goal. An agreed course should be clearly outlined at the start of the representation and discussed and revisited as necessary.
2. Listen to the client. This may seem obvious, but it is an unpleasant experience to explain why a course was taken that was contrary to agreed instructions. You are in a service-providing industry; actively listening and making pertinent inquires will serve you and the client well.
3. An informed client is usually a happy client. We do not make the facts. If there is a problem, it needs to be identified and addressed early. The reporting of positive case developments is also appreciated by clients.
4. Do good work and strive to produce consistent results.
5. Be responsive. Respond to phone calls and e-mails as soon as you can.
1. Always stand when the judge enters and exits the room. This may seem obvious, but I am amazed when counsel fails to do this. Rising for the presiding judge shows respect for the tribunal. We cannot forget law remains one of the noblest professions. Let’s keep it that way, please.
2. Be polite to court personnel. A simple phone call to the court’s staff or bailiff can usually steer you in the right direction if you are unsure of how the presiding judge holds court. Also, remember these are the same people you will interact with when you appear for contested hearings and trial in the same court. If you think they will not remember you or your office, think again.
3. Be prepared. The judge expects counsel to be prepared to discuss the case and present the clients’ position on the matter at hand. This is our job as counsel, to advocate for our clients’ positions. If you are unprepared, you are failing to provide valuable representation and are likely tarnishing your own reputation.
4. Make the court’s job easier. This holds true in legal writing and oral arguments before the court. Try to provide the court with all the necessary information and arguments to make it as easy as possible to issue a ruling consistent with your position.
5. Ask the judge. I have witnessed many pretrial conferences and contested hearings where it seemed as if there were an “elephant in the room.” Whether it’s an issue of pretrial procedure, a date for an anticipated ruling on a pending motion, or a matter of the judge’s personal preference on the conduct of a jury trial, there is usually no harm in asking.
1. Communicate. I recently departed from my prior practice of calling opposing counsel upon receipt of a new defense assignment. Part of the reason for this was the lack of a return call and the lack of useful information from the call when initial contact was made. We need to communicate effectively with counsel. I have found the telephone is still an invaluable tool to get things done. Of course, there are times when we need to send a confirming letter or email.
2. Be professional. Inappropriate, childish behavior by counsel is unfortunate when it occurs during litigation. The oaths we take as lawyers and the Rules of Professional Conduct govern our profession, and we must remember to think before we speak — or hit “send” on e-mails.
3. It’s a small, round world. The Indiana legal community is a tight-knit group, particularly if you practice in a niche area of law. It’s important to keep in mind that what goes around will probably come back around.
4. Agree to disagree. When we advocate positions, our adversary will likely disagree. There comes a point when all attempts at compromise have failed and court intervention is imminent, hence number 5, below.
5. Litigate. Don’t be afraid to “call the bluff” or go “all-in,” particularly if you know the law and the facts are with you. Just be sure your client is informed and approves. If so, embrace the litigation process.
From the Author
1. Know thyself.
2. Control thyself.
3. Give thyself.
Socrates, Cicero and the Savior were correct.
This is a tribute to my fellow Claude W. Pettit College of Law graduates and Polar Bears from Ohio Northern University. Civil litigation can be stressful, and it is nice to see the recent focus on attorney wellness.•
Elliott I. Pinkie is a partner with Cline Law Group, LLC, in Indianapolis and serves on DTCI’s Board of Directors. Opinions expressed are those of the author.