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Winingham: Unsolicited advice for new lawyers

October 31, 2018
Winingham Winingham

By W. Kent Winingham

I have essentially been a “new lawyer” twice — the first time as a newly admitted lawyer in Illinois (Chicago) in 2015, and the second time as a newly admitted lawyer in Indiana (Indianapolis) in 2017. So, if I know anything, it’s what it feels like to be a new lawyer. This has provided me with some perspective on what a new lawyer can do to help him or herself get ahead of the curve. It is not so much about “what to do” or “what not to do.” Rather, it is more critical to know how you can equip yourself with some tools to make your life a little easier as a new lawyer. For what it’s worth, I think the following may be helpful in doing so. Some is advice I received as a new lawyer, and some is what I have gathered in my last few years of practice. Here are a few things I wish I had known and/or adopted earlier in my practice:

Dealing with depositions

Think smarter during the deposition, listen to the witness and stress less in preparation.

So often you hear “don’t just read your outline” or “be flexible” with regard to taking a deposition. This feels nearly impossible for a fresh lawyer taking his or her first depositions. You feel like the lights are on you, opposing counsel is 25 years older than you, and you have to act like you know your case and know what you are doing. This, in turn, leads to intense preparation that is often excessive and unhelpful.

Try it, though. Make the process easier on yourself. Note the three to five points you want to hit during the deposition, prepare by knowing the facts of your case and make a small outline that is simply a guiding tool getting you to those points. This sounds frightening and difficult, but if you know the facts of your case, I promise it makes the deposition much easier, more effective and more fun. Yes, you must prepare for your deposition and know the records, but minimizing your outline and minimizing scripted questions allows for more thoughtful, and less stressful, preparation. I did not heed this advice when I first started practicing, and it made the deposition preparation process so much more difficult than it needed to be.

Additionally, do not be afraid to take a break. If there is not a question pending and you feel like you need to gather your thoughts, call someone back at the office to inquire about an issue that came up or simply go through records or your outline for a few moments, do it! This can be a great time to collect yourself and get back on track.

Most importantly, listen to your witness’ answers. So often we new lawyers move on to our next (often scripted) question after a witness’ answer. Sometimes, though, the answer was either terrific or horrible, and deserved significant follow-up either way. It is so easy to miss these moments when you are scripted. Remember, you are there to get the witness’ testimony and hit your points. If you screw up, so what? Take your time, do not rush yourself and do not let opposing counsel rush you. Listening to the witness’ answers and following up is why you are there, so do yourself a favor and listen more and read/write less during a deposition.

Use help from Listservs, peers

My favorite saying in the practice of law is “don’t recreate the wheel.” It is my favorite saying because it is so true and can save a lot of unnecessary time and energy when it comes to practicing law. The best way to avoid recreating the wheel is to join your respective Listserv and use your peers’ help. National organizations such as the American Association for Justice have a variety of Listserv options, and you can be sure to find one that is relevant to your practice. The same is true for statewide organizations such as the Indiana Trial Lawyers Association and the Defense Trial Counsel of Indiana. These Listservs are worth the cost. They are a gold mine of briefs, deposition transcripts and communication related to topics that will often be critically relevant to your practice.

Similarly, if you know a colleague has dealt with an issue that you are now facing, ask him or her for guidance. Most attorneys do not mind offering guidance, or even briefs, related to the issue. This is not a sign that you do not know what you are doing. Instead, it is you being smart and covering your bases so that you can be sure you have all of the information you need to support your argument or position.

Reputation starts right away

If you act like a jerk early on in your career, you will always be known as a jerk. Yes, you sometimes need to stand up for yourself as a new lawyer in order to avoid getting pushed around. Yes, you should be an advocate for your client. But this does not mean fighting opposing counsel on every point. Pick and choose your battles. Raising hell and being difficult in the face of minor, insignificant issues is not a demonstration of strength, and it decreases your leverage when you actually do need to address a significant issue that requires pushback. Be smart. Indiana is a small community, and word gets around fast if you act like a numbskull throughout litigation or pre-suit discussions.

On that note, remember that your reputation is equally on the line when you attend events outside of the office. Have fun, meet others, but know that you may be interacting with future opposing counsel, future judges, current judges and all the like. Fair or unfair, word travels fast around the state, so you want to make sure you are still on your game even in relaxed environments.•

W. Kent Winingham is an associate at Wilson Kehoe Winingham. Opinions expressed are those of the author.

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