10 Resolutions for Trial Lawyers in 2014

1. Accept only cases you would be willing to take to trial.

Probably every plaintiff’s personal injury and wrongful death trial lawyer has accepted weak cases on the assumption that there would be an easy settlement. That is how a lawyer wastes time and money taking losing cases to trial. If you expect to provide for your family and avoid becoming an impoverished burden to your children in old age, you must evaluate cases as investments, as you will invest substantial time and resources in any serious case. We all have different criteria about case selection, and those criteria may evolve greatly over the course of a career, but we should be clear about what our criteria are.

- Decline or refer a prospective client if you don’t find him credible or likable. If you can’t believe him, who will?

-  Consider whether you should decline or withdraw from a case if the law, the facts or the insurance coverage issues make it highly improbable that you can ever satisfy the client and / or your creditors in handling the case. We do take on “cause” and pro bono cases, but we need to do so with our eyes open rather than just taking cases that lack merit and then become unintended free labor. If you recognize that the path to success requires years of hard work and multiple appeals in an effort to change existing law, count the cost in time and treasure before you go forward.

- Be candid with clients about the prospects of their cases. If you have accepted a case but then learn facts that, if you had been told the truth up front would have led you to decline the case, it is better to withdraw and facilitate transfer of the case to another lawyer than to hang on so long that you have no choice but to try a case with no rational chance of ever satisfying the client. If a careful and honest analysis of the case is unfavorable but a client cannot or will not deal with reality, give your notice of withdrawal before the passage of time prejudices the client’s ability to get another lawyer to take the case.

2. Communicate regularly with clients.

In my years as a State Bar officer, I saw that most client complaints about lawyers arise out of failure to communicate. However, many of us who are busy doing the substantive work do not take the time to communicate much during those phases where there is nothing happening that requires the client’s participation.

Sometimes lawyers just send clients copies of correspondence and pleadings with little or no explanation, only to find that generates long, befuddled phone calls at inconvenient times, and may then be deterred from even sending copies until there is time to fully explain them.

When I spent a decade doing litigation defense for insurance companies, some of them required monthly report letters. Although that seemed a bit overkill, it was not a bad discipline. We should resolve to communicate regularly with clients even when there is little new to report. The discipline of doing so may help move cases along toward resolution. It might even generate new case referrals.

3.  Remember that pigs get fat but hogs get slaughtered

If the liability facts, damages, law and insurance coverage all align, be bold. In the immortal words of Ken Stabler, “Throw deep.”

But be rigorously objective in the analysis of risks. In the words of a song made popular by Kenny Rogers, “You got to know when to hold ‘em, know when to fold ‘em, know when to walk away and know when to run.”

4. Review every case every week and make something happen.

It is easy for lawyers to focus on a few cases that are especially challenging, letting others languish.  We need to discipline ourselves to review the status of each case each week and try to identify some proactive step to move each case forward.

5. Update your technology tools and skills.

Technology can be the great equalizer for the small firm trial lawyer. But make sure you control it as a productive tool rather than letting it control you. In litigation today, we need to expand our skill sets to deal competently with discovery of electronically stored information in a wide variety of formats. We need to continually improve our utilization of technology in our own law practices. But we also need to recognize when “high touch” is more effective that high tech.

6. Read a law review article or book every week.

If you have a Westlaw or Lexis account, you are just a few clicks away from a vast law library. While scholarly legal journal articles and books can be ponderous and too often impractical musings of law professors who never condescended to actually practice law, there are many that can provide the intellectual underpinnings for expansion of your perspective in your practice area. Some of my best brainstorms for case strategy have come through reading broadly and then staring out the window a while.

7. Market yourself & Keep Relationships Warm

My late mother often told me, “He who tooteth not his own horn getteth it not tooted.” So I have spent a fair amount of time finding ways to toot my own horn.  Some folks call that building a “personal brand.”

A few “rock star” trial lawyers get all the great cases they can handle purely on the basis of reputation. The rest of us have to work at it.

Despite having had the first lawyer website in Georgia in 1996, and having served a term as State Bar president, I find that the best cases still come by referrals from other lawyers and former clients. Relationship marketing can be the best marketing. You never know where great case referrals will come from, so find ways to keep lots of relationships warm. Recently, I have had outstanding case referrals from a hometown lawyer whose parents were a year ahead of me in high school and from a lawyer with whom I got acquainted by a campfire on the Appalachian Trail on a January camping trip with our sons’ Boy Scout troop nearly a decade ago years ago.

But I doubt if they would have thought of me when cases came along if I had not kept those relationships warm.

8. Be a thought leader – write and speak in your field.

We all learn more when we are on deadline to publish or speak on the topic. (That’s one reason I need to get back to teaching adult Sunday school classes.) Beginning in 1993, I was a regular on the Continuing Legal Education speaking circuit. By the time I finished service as State Bar president and chair of the trustees of the Institute for Continuing Legal Education, I was tired.

Now it’s time to get back in teaching mode. Twice in the past two months I’ve spoken at CLE programs. This week we completed updates on my book for West Publishing with the able and energetic help of my brilliant young co-author, John Hadden. Going forward into 2014, I am booked to speak at a national trucking litigation seminar in Las Vegas in the fall and need to carefully pick a half dozen other CLE topics, venues and periodicals in which to publish articles.

9. Make time for faith, family and fitness.

Faith.  Relationship with the Creator is essential to our mental and spiritual well-being and can help fuel our passion as advocates for our underdog clients, often the folks a certain Jewish carpenter called “the least of these.” I was raised Methodist and 30 years ago became a Presbyterian when I married one. When in the hectic hustle of daily life my relationship with God has faded to the background, my passion for life and my calling as a lawyer has also waned. But when inspired to see my daily legal work as a true calling, that work has been better. Whatever your own faith background, resolve to rekindle the flame of your spiritual life in 2014.

Family. My kids are grown and out of the house. Since 2010, my bride and I lost 3 of our 4 parents. I regret the many times I was “too busy” with work to spend quality time with both children and parents. In 2014, I plan to take my wife to France, meet my young adult son at the gym early most mornings to train for some audacious goal, have a Skype visit weekly with my daughter and her husband in New Hampshire and visit in person when we can, and go with my wife to visit her mother more often.

Continually renew your loving relationship with your spouse. If that ain’t right, nothing is likely to be right. If you are young and single, do the math about how old you will be when kids are in college if you endlessly put off commitment. If you have kids still at home, get home in time for a family dinner, spend age appropriate quality time with them, attend all their games, recitals, etc., and set a good example as loving parents. And no, you don’t get full credit when you are only physically present but your attention is all on the little screen of a smart phone, tablet or laptop.

Fitness. As a lifelong workaholic, I know all too well how easy it is to let work crowd out sleep, exercise and healthy eating. Sometimes that is inevitable in the heat of trial work. But we all function better and last longer if we get adequate sleep, exercise vigorously for an hour most days, and stick to a healthy diet. What worked for me best in the past was to commit to a bold goal (e.g., running a high profile marathon on a date certain) that required a strict training regimen for several months. To combine that with my work day, I had to get up about 4:30 or 5 AM, which in turn required going to bed by 9:30 or so. With exercise, sleep and healthy diet, I got back to college weight, felt great and worked more efficiently than ever. Getting away from that regimen, the pounds came back on. Time to get back to it.

10. Attend Trial Lawyers College.

Even if you think psychodrama sounds hokey, and even if you can’t block out three weeks to go to Gerry Spence’s ranch in Wyoming, you can rekindle your passion for advocacy at one of the regional TLC programs. In 2013, I attended four of the regional programs in Florida, California, Washington and Texas. In 2014, I have registered for a three week Trial Lawyers College program in Wyoming.

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.

  • John Cowherd

    Hi Ken Shigley,

    I liked #1 because it is specific about what it means to commit to a client on a discrete case, i.e. to potentially be there to the end of trial and possibly post trial motions and/or an appeal. Every client with a meritorious case deserves as much. It is too easy, for an attorney, to accept a case based on whether you think you can survive a pre-answer motion (or, worse, the size of the retainer offered). I think that this applies not only to contingency fee work but also hourly or blended retainers.

    I also liked #4, 6 &10 – a manufacturer of a retail product can’t settle for simply putting the same product out there year after year, otherwise competition will be on their heels. Why should lawyers be any different? you point out well that this applies not only to technology but also following what other lawyers are thinking and also advocacy skills.

    Thanks,

    John

    @vabizlawyer
    cowherdblog.com

  • http://jacksonandwilson.com/ Mitch Jackson

    Ken- Love the post. Sharing it with all the young trial lawyers I mentor. Also on my trial lawyer tips platforms. Much success in 2014!

  • Patrick J. Higgins

    Ken: This is good advice. Keep the posts coming. Stay well. Pat Higgins