Improve your writing by reading what others have written. Get in the habit of reading motions written by others at your firm. Study their:
* sentence structure
* paragraph structure
* argument structure
* word choice
* transitions
* themes
Study their motions. How do they argue their positions? How do they persuade? How do they say what they want to say? How do they get their message across? Reading what others wrote will help you improve your own writing.
More and more, it is easy to find low-cost or even free CLE. With the explosion of webinars and podcasts and online courses, CLE has never been easier to acquire and acquire cheaply. As young lawyers, you owe it to yourself to seek out CLE that supports and builds your practice. Yes, it is time out of your personal schedule. Yes, the courses you choose may not always live up to the hype. However, they offer the building blocks you need to take your practice to the next level.
Young lawyers often hear they should specialize. It’s good advice. Find an area your passionate about, drill down and become an expert in that area of law. You’ll become a resource to your firm and your firm’s clients.
When you start with a new case, prepare a case strategy to tackle the case and accompany it with a “to do”list of the items you need to complete to accomplish your strategy. Compose a list of the documents you want to secure, the witnesses you want to interview, the individuals you want to depose. Make the list as detailed as possible. As you complete a task mark it off, noting what you did and when you did it. Periodically (every 30 to 60 days) update the to do list to ensure you’re doing what is necessary to accomplish the goals you have set out for the case.
In their book Cross-Examination: Science and Techniques, Larry Pozner and Roger Dodd define the phrase “facts beyond change.” “Facts beyond change” are “facts that will be believed by the jury as fair, accurate, and highly relevant regardless of best efforts to dispute or modify them.” They are “the givens of a lawsuit.” Your theory of the case must either adopt these facts or, at the very least, not oppose them. Your theory cannot “contradict a fact beyond change.” When your theory contradicts such a fact, the fact finder will choose the fact over your theory. Therefore, learn to categorize your facts between those that are beyond change and those that are not and plan your case theory accordingly.
Whenever attending a conference or seminar, make the most of it by finding out the names of the attendees beforehand and reaching out to those you know. Let them know you’re looking forward to seeing them and consider scheduling a lunch or dinner with one or more of them.
When interviewing witnesses, refrain from making statements that may be perceived as defaming the witness or third parties. You don’t want to turn a fruitful interview into a potential defamation suit.
If it is ethical and permissible, interview witnesses before deposing them. Often, you will discover information that will greatly impact how to depose them (and at times, whether to depose them at all). You can avoid surprises at deposition by knowing beforehand what the deponent plans on saying.
After your client’s deposition, take the time to debrief her. What did she think about the deposition? The questions asked? The lines of questioning? How they were asked? How did the prep sessions help her? What did she find most useful about the prep sessions? Were the prep sessions lacking in any way? Find out your client’s impressions about her deposition so you can learn how you can improve your prep sessions for your next deposition.
Take the time to ask your client every question you expect opposing counsel will ask her during her deposition. She will thank you when she anticipates the questions being asked and is prepared to respond to them.
Many of us are visual learners. When preparing your client for deposition, consider writing out the main facts, theories, themes and so forth on a dry erase board or large pad. It will be a running list that you will add to and refer to throughout your meeting and that will facilitate the learning process.
When preparing your client for deposition, share with her your case theory and case themes as well the opposing party’s case theory and case themes. Her deposition testimony should reinforce you case theory and themes and undermine the opposing party’s.
When preparing a client for deposition, prepare a binder with all the documents you expect her to be asked about, and go through it with her to ensure she is prepared to answer any question about those documents.
When preparing for your client’s deposition, spend time drafting what you expect to be the other side’s cross-examination. Think through the questions they’ll ask, the lines of questioning they’ll pursue, the potential traps they’ll try to set. This will help you focus on the tough questions you expect to be asked of your client and you can better prepare her on how to respond to them.
Before drafting a motion, take the time to draft an outline of the motion. This will ensure you make all the arguments you want to make in the order you want to make them.
Get in the habit of reading the local business paper each day. Generally these papers highlight what is going on in the legal community. You can follow what your peers are doing, keep up with business and legal trends and add to your general knowledge for cocktail hour conversation. In Miami, read the Daily Business Review and the Florida Bar News to see what colleagues are doing. If you notice an old friend or colleague move to another firm, go in-house or win a major victory, consider sending her a handwritten note congratulating her. It’s a good way to keep in touch.
Westlaw has a database titled “Trial Court Documents.” When you work on a motion, look there for similar motions from which you can draw caselaw, arguments and a logical progression for those arguments. Often you’ll find pleadings or motions that are similar (at times virtually identical) to the ones you plan on drafting.
When you have a conference call with a client, write out an agenda for yourself to ensure you cover all the necessary topics in the order you want to address them. Knowing what you want to say in advance will make the call run smoothly and will ensure everyone remains focused on the issues at hand.
Looking over my posts, I notice they fall neatly into three categories. One category includes posts born of mistakes I have made, or observed others make. Another category is advice from Spencer Silverglate, the managing partner at our firm. The third category includes mistakes I’ve made despite advice from Spencer. There’s a lesson to be learned in these categories. First, we need to learn from our mistakes. We’ll make plenty of them and we’ll observe others make their share. They all serve as learning experiences. Second, we all need mentors to show us (sometimes repeatedly) how to do things the right way. Search out the Spencers in your firm who are willing to invest their time and energies into your development as a lawyer. And don’t forget to pay it forward by investing your time in others.
Whenever using an interpreter, speak with him first and ask for references. There is no worse feeling than having a deposition go wrong because the interpreter is not qualified.
When you prepare to depose the opposing party, take time to discuss the deposition with your client. She may suggest some great questions you should ask. Also, take the time to view the deposition through your client’s eyes. What types of questions do you think she would ask? What lines of questioning would she pursue? Keep those in mind when preparing your deposition outline.
In Cross-Examination: Science and Techniques, Pozner and Dodd emphasize the advantage of cross-examination-centered trial preparation. Focusing on cross-examination helps develop the theory of the case and trial themes. Focusing on cross-examination “exposes the indisputable facts that the trial lawyer must address.” And focusing on cross-examinations helps one craft a resonant closing argument. Prepare your cross-examinations first, and the rest of the case will follow.
Take a book or text you refer to regularly, whether CLE materials on an area of substantive law or a one volume treatise on evidence, procedure or litigation practice, and set aside twenty minutes a day to read 10 pages a day. Within a month or two, you will have completed the book and have gained a greater understanding of that area of the law.
If you want to learn how to cross-examine a witness, really cross-examine him, read Cross-Examination: Science and Techniques by Larry S. Pozner and Roger J. Dodd. Their book provides an exhaustive explanation on how to cross-examine witnesses at deposition and at trial. In Chapter 8, they say there are only three rules of cross-examination:
1) “Leading questions only.”
2) “Only ask one fact per question.”
3) “Break cross-examination into separate and definable goals. Each section of cross-examination must have a specific goal.”
Future posts will address other techniques they teach.
For your next deposition, create file folders for each exhibit you plan on using, and include enough copies for everyone in attendance (yourself, the witness, opposing counsel, other counsel, etc). Label all the file folders and organize them in the order you plan on using your exhibits at the deposition. This will take some time and preparation but will ensure your deposition runs smoothly.
For those of you trying to learn a second language, try immersing yourself. If, for example, you’re trying to learn Spanish, listen to Spanish radio and watch Spanish television. If you like sports, listen or watch sports in Spanish. If you like movies, consider watching some in Spanish. If you immerse yourself in the language, you’ll master it faster.
When deposing the opposing party, keep in mind that he has been trained by his attorney not to make admissions. His attorney has drilled into his head the importance of not making admissions that hurt his case and that help you. Your job is to secure admissions. You want him to agree with you. Of course, he doesn’t want to agree with you. So there is this inherent tension between what you want and what the deponent plans on doing. When drafting your deposition outline and deposition questions, appreciate this tension and be prepared for it. Put yourself in the deponent’s shoes and see how you try to wiggle out of answering your tough questions and make the necessary adjustments to the questions you plan on asking and the order you plan on asking them.
If you don’t already have one, create an excel spreadsheet of your contacts. Include their names, addresses, phone numbers, e-mails, company or firm names and a general information section where you’ll include personal and business information. As your list grows, there will be individuals on this list that you will forget. The information section will act as a quick reference guide to refresh your recollection of who they are and how you know them. Once you’ve completed your contact list, grow it. Make an effort to add to it each week and make an effort to reach out to those on the list. Send them an e-mail saying hello, catching up and renewing old friendships. These relationships you are nurturing will help you grow personally and professionally.
When deposing a witness, see if his company has been reviewed on any of the popular review sites. You may learn about individuals who have complained about the company, perhaps complained about the very same things which are the subject of your deposition. If it’s your client being deposed, review the complaints with him and be prepared to answer questions about them.
Often, deponents (or their companies) have their own websites. Get in the habit of combing through those websites for admissions you can use in deposition. For example, the website may contain certain statements which are favorable to your case. Have the deponent admit that he or his company has a website, that the content is accurate, that it reflects his views and then have him agree with the individual statements you’ve culled from the website. If your deponent does not have a website, he may belong to an association or organization that does. Perform the same exercise with the content of the association’s website.
In a Simple Act of Gratitude, John Kralik, an attorney, found his life in shambles. His practice was failing. He was struggling through a second divorce. He was living in a tiny apartment, becoming more and more isolated from his friends and family. One day, he decided to hand write a thank you note everyday to a different person, and to do it for a year. The experience transformed his life for the better.
Get in the habit of hand writing notes to family, friends and colleagues. Thank them for what they have done in your life. These simple acts of gratitude help us better appreciate those around us and help us focus on what we have and not on what we believe is missing.
Sol Stein in Stein on Writing says that if a writer cannot capture a reader’s attention right away, the writer has lost the reader. First sentences and first paragraphs are crucial in capturing and keeping the reader’s attention. Stein states, “Your entire story or novel may depend on that first sentence arresting the reader’s attention. A terrific sentence on page two won’t help if the reader never gets there.” The first sentence and the first paragraph must hook the reader.
As lawyers, the initial paragraph of a letter or the introduction of a motion should capture the reader and draw him into the story you’re telling, typically your client’s story. Delay in getting to the point and risk losing your reader.
“If you want to be a writer, you must do two things above all others: read a lot and write a lot.”
Stephen King
King, in his memoir/writing book On Writing, offers the following advice.
* Write, rest, edit. When you write, allow yourself time to put it down and come back to it later to edit.
* Edit, edit, edit. All drafts can be cut down by 10% or more. Spend time to remove the excess words, phrases, sentences and even paragraphs. If you don’t need it, omit it.
* Read. If you want to learn how to write well, read good writing and read a lot of it.
* Write. Write every day. Whether it’s for work, or fiction, or blogging, set aside time each day to hone your skills. Consider writing at least 1000 words a day.
* Avoid adverbs. Verbs are your friends. Adverbs are not.
* Use the first word that comes to mind.
* Avoid the passive tense.
It bears noting King’s reliance on The Elements of Style, a book he considers a must read.
“Nobody becomes Tom Wolfe overnight, not even Tom Wolfe.”
William Zinsser
Zinsser, in his book On Writing Well, says a fundamental rule of writing is to be yourself. In order to be yourself, you must relax and you must have confidence. “Believe in your own identity and your own opinions,” says Zinsser. ”Writing is an act of ego, and you might as well admit it.”
Writing is a creative process. It is an expression of you. ”Relax and say what you want to say. Style is who you are.” With time, you will develop your own style, your own “voice.” Don’t rush it. It’ll take time, but it will evolve and will emerge.
“If you find that writing is hard, it’s because it is hard.”
William Zinsser
Zinsser, in his book On Writing Well, reflects on the modern day reader and everything vying for his attention. He says that your reader has a thirty second attention span. If you make the reader work too hard you will lose him and his limited attention span. Learn to rewrite to make your writing “tighter, stronger and more precise, eliminating every element that’s not doing useful work.” After you do this, read your work out loud and remove additional clutter. There is always more clutter to remove. ”Fighting clutter is like fighting weeds – the writer is always slightly behind.”
He instructs us to examine every word we have written. Many serve no purpose. If they don’t, eliminate them. But how does one identify the clutter? Zinsser recommends “putting brackets around every component in a piece of writing that wasn’t doing useful work.” Read your writing without the bracketed portions and listen to how it sounds. By applying his technique he says that most first drafts can be reduced by 50% without losing a single percent of meaning. Remember, “simplify, simplify.”
In the last post, I mentioned some style tips from The Elements of Style. Additional tips include:
* Write with nouns and verbs, not with adjectives and adverbs.
* Revise and rewrite. Be willing to have your work undergo several drafts.
* Avoid qualifiers such as “rather” or “very.”
* Avoid fancy words.
* Be clear. Don’t used muddled writing.
In The Elements of Style, Strunk and White provide a list of reminders in developing one’s writing style. Among their tips:
1. “To achieve style, begin by affecting none.” Don’t put yourself in front of your writing. Put yourself in the background.
2. Write in a way that comes naturally. Use “words and phrases that come readily to hand.” And practice imitating good writing. ”The use of language begins with imitation.” Find good writers in your firm, study their letters, memos and motions, analyze what they do and imitate it. In college, my fiction teacher told us to take a story or poem we liked, and rewrite it in our words, line by line. She suggested we take “Hills Like White Elephants” by Ernest Hemingway, and rewrite each descriptive phrase, each line of dialogue, each give and take between the two characters. We would end up with a different story built around a strong design. Imitation would lead to good writing.
When I reflect on how many mentors I currently have, at least a half-dozen jump to mind. I have mentors at work, among my friends and family and at my church. They have shared their wisdom, their time and themselves to make me a better lawyer, father and friend. Mentoring has become popular in our profession. But instead of searching out a single mentor, search out multiple mentors, and search out those who will make you a better lawyer and a better person. We’re all busy. Imagine having only one mentor answering all your questions. You would be asking too much of that person. Build relationships with several colleagues, family and friends and seek out their wisdom. And pay it forward by taking the time to mentor others.
When writing plain English, read plain English. Most newspapers are written in plain English. So are the weekly magazines. They say a lot in a tiny bit of space. Get in the habit of reading newspapers to study their paragraph and sentence structure. Learn how they communicate complex thoughts in a simple, direct manner. They have a way of turning complex ideas into bite-sized pieces and feeding them to you. That’s what we should be doing in our writing.
In Plain English, Richard C. Wydick provides numerous tips on reducing words:
1) Avoid compound prepositions
2) Trim verbose word clusters
3) Shorten clauses to phrases
4) Shorten phrases to adjectives or adverbs
5) Avoid redundant legal phrases
And regarding word choice:
1) Use concrete words
2) Use familiar words
3) Avoid lawyerisms
And regarding clarity:
1) One thought per sentence
2) Average sentence should be 25 words or less
3) Use base verbs
4) Use active voice
5) Arrange words with care
6) Keep the subject close to the verb, and the verb close to the object
7) Put modifying words close to the words they modify
I will be writing a series of posts on writing. What better place to start than excerpts from others addressing plain English. Richard C. Wydick, in Plain English for Lawyers, notes that “We lawyers cannot write plain English. We use eight words to say what could be said in two.” His advice begins, “omit surplus words.” He breaks down words into two categories – “working words” and “glue words.” The “working words” are the ones with meaning. They carry the sentence. The “glue words” just hold the “working words” together. Use too many “glue words,” and you have a poor sentence. Wydick recommends isolating all the working words and rewriting a sentence, focusing on those words and reducing the number of glue words. Ask yourself, “how can we say the same thing in a tighter sentence with less glue?”
Joining organizations, becoming involved and staying involved often lead to meaningful, long-term relationships with others, some of whom one day may refer you business. I’m not suggesting you join organizations simply to secure business. You need a desire and a passion to serve the mission of the organization you’re joining. But a by-product of your efforts are relationships with those who are in a position to refer business. Now relationships take time. You don’t join an organization today and have a case referred to you tomorrow. Building relationships take time. Building friendships take time. Building confidence takes time. But with time and effort, you can develop a list of individuals who can become potential referral sources for you, not only referring their cases but acting as your ambassador, having others refer cases to you too. Find an organization you’re passionate about, join it, work hard, get to know others and build relationships that last.
It’s been a while, but I started blogging again. If there are any topics you would like me to address in future posts, simply e-mail me your thoughts and suggestions.
I look forward to getting back to blogging.
16. Learn how your judge conducts her trials. Secure any protocols your judge makes available about her trial procedures and make sure everyone on the trial team is familiar with them. Speak with colleagues who have tried cases before her and learn how she runs her courtroom and any pet peeves she may have which you’ll want to avoid.
17. Learn how your opposing counsel tries cases. Do a jury verdict search to see how many cases and the types of cases opposing counsel has tried (and his results in those cases). Also ask around regarding his courtroom style and demeanor and whether he’s known to pull any stunts or act unprofessionally at trial.
18. Prepare witness files. Each witness file should contain the witness’s deposition, exhibits to deposition, summary of deposition, trial examination outline and any exhibits you plan on using with the witness (or impeaching him with).
19. Prepare a key pleadings and motion binder. Print off the key pleadings and motions (the last iteration of the complaint and answer, dispositive motions, motions in limine) and have a binder available to have them at the ready if the need arises.
20. Prepare a trial notebook. A trial notebook should contain your trial themes, jury selection questions, outline for the opening, directs and crosses of all the witnesses, and the key exhibits. Having it all in one place will help the trial team focus on the big picture and develop the over arching themes that will thread the entire trial.
11) Learn the technology. if you’re going to handle technology at trial on your own (Trial Director or an ELMO, for example), learn it from someone who knows how to use it well and practice with the exhibits your team plans on using at trial. Knowing how to use court technology makes your presentations crisper and saves costs by not requiring you to hire a third-party vendor to provide your client those services.
12) Get court approval to use technology. Secure the court’s consent (via an order) allowing you to use technology, including whatever equipment you want to bring into the courtroom.
13) Have a backup for the technology. Sometimes things go wrong. Computers don’t work. Software freezes. Make sure you have blow-ups of your key exhibits and demonstrative aids.
14) Know how you’re getting your exhibits admitted. Are the parties agreeing to the authenticity of records? Are you going to face any foundational challenges to your exhibits? Challenges due to relevancy or prejudice? Be prepared to argue why your exhibits are coming in, and consider preparing pre-emptive motions in limine seeking their admission into evidence.
15) Jury Instructions. Prepare them early to provide you a better understanding of what you need to prove at trial, so that you can modify your case presentation and your trial themes accordingly.
6. Jury consultant. Consider whether to hire a jury consultant to assist with preparing your witnesses to testify at trial and assist with picking a jury.
7. Trial graphics consultant. Do you need someone at trial to assist with the technical aspects of showing off your exhibits and demonstrative aids? Do you need someone to display documents on a screen while you examine a witness? Have you compared prices and services? Secure quotes, compare apples to apples and get client approval.
8. Court reporter. Who is responsible for the court reporter? What will the cost be? How will the parties split the cost?
9. Power point presentations. Is there going to be a power point presentation during opening? Closing? During any of the direct examinations? Are you going to assist in preparing them? Do you have the documents and information to help prepare them?
10. Blow ups and exhibits. Are any records being “blown up” and highlighted? Are there any charts or graphs to prepare? Timelines? Demonstrative aids to assist a witness or expert? Diagrams or illustrations to reduce your theme to an image? Come up with a list of exhibits and secure quotes from different trial exhibit companies.
After seeing one case settle after another, you finally work on one which is going to trial. You’ve been assisting the partner during the course of the litigation and she’s asked you to sit second chair. When preparing as second chair, consider the following:
1) Who’s going to trial? Find out who’s going to trial beside you and the partner. Another attorney? Paralegal? An attorney from another firm? And then inquire about the division of labor. Who does what will likely be a fluid process that will evolve as trial gets closer and closer.
2) Develop a “to do” list. Write a list of all the things that should be done to prepare the case for trial and then discuss the list with the partner, who will have her own additions and changes. Everything from what exhibits to use, to what motions in limine to file to which witnesses to call to testify.
3) Complete discovery. Are there any update depositions to take? Trial interrogatories and trial request for production? Any witnesses on the other left to depose? Have all the experts been deposed? While there is still time, complete the remaining discovery necessary for trial.
4) Mock jury? Does the case warrant having a mock jury to test out some trial themes? A cheap alternative is to have staff or family members of lawyers in the firm sit through a mock jury selection or opening statement, or gauge their reaction to various themes to be used at trial.
5) Accommodations. Is the client flying in? Is the trial team flying out? How about experts and witnesses? Assist your staff to coordinate the travel and hotel arrangements for trial.
Technology had made it so we could buy and sell memories. Someone else’s experiences could be yours and your experiences could be theirs. You could sell your law school education, your vacation to Costa Rica, or your crazy spring break. These memories could serve as a down payment for your purchase for another’s backpacking trip through Europe, backstage pass to a concert, or a date with a famous performer. Experiences had become a commodity, like cars, televisions and laptops. You went to a dealership, they downloaded the memories you wanted to sell, scrubbed them of personal information, cleaned them up a bit, and resold them at a large profit. And of course, while you were there, they pressured you to buy another’s memories. The thing about buying memories though, is that they change you. Someone once said, “we are our memories.” If that’s the case, who are we if we buy someone else’s?
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About a dozen men sat in folding chairs in a large, bare conference room. The men wore dark suits with red or blue ties, each holding a styrofoam cup, filled with coffee, steam wafting off the tops. At the front of the room, in front of a dry erase wall, stood a man wearing a blue pin-striped suit, silk white shirt with french cuffs, ruby-encrusted cufflinks, a red tie, and black winged-tipped shoes. The man was Phillip Allen from corporate in Chicago. He wasn’t happy.
“Today is October 27th. Does that mean anything to any of you?” No one said anything. ”Do you know what it means to me? It means there are four days left for you to meet your sales quotas. Anyone want to guess how close you all are to meeting them? Anyone?” Allen looked around the room, pausing to make eye contact with everyone in the room. A few looked away.
“Your goal for the month is here,” he took a dry erase black marker and wrote a line near the top of the board. “Being that there are only four days left this month, you should be here.” He drew another line just two inches beneath the first. ”Do you know were you are? Does anyone want to come up here and draw a line showing me where you all are? Anyone?” Again, a long pause. Again, Allen looked around. Fewer eyes met his this second time.
“Well, since there are no takers, let me show you.” Allen drew a third line well below the first two. “This is where you are. You are not 95% there. You are not 70% there. You’re not even 50% there. You are at 45% where your numbers should be. You know what 45% means? It means that instead of me taking my sailboat out on Lake Michigan I am stuck flying down here to Miami to teach you what you should already know. No one other than Mr. Montgomery himself from the Mother Ship comes to my office and tells me I need to come here and fix the problem. You know what I tell him? I tell him, you want me to fix it? Let me fire them all. Because if they can’t sell the best product out there, then they don’t deserve to stand in our showroom, drink our coffee and pretend to be salesmen. 45%? Are you kidding me?” Allen starting raising his voice and stopped himself, before he starting raining down obscenities on the men in the room. “But Montgomery, who is much more patient and caring and generous than me said no, let’s give those fellas another chance. Well, fellas, here’s your chance. In the next five minutes I’m going to teach you everything you need to know. Is there a Wally Vegas here? Wally?”
Wally had sat all the way in the back, avoiding eye contact with Allen, sucking one Halls cough drop after another, doing his best not to let the cough which had dogged him for the last three weeks interrupt Allen. He liked Halls because they had a “Pep Talk in Every Drop,” with encouraging sayings on each wrapper. Sayings like “It’s yours for the taking,” or “Get back in there champ,” or his favorite “Dust off and get up.” He was reading this last phrase over and over when he heard his name for the second time. He perked up and meekly raised his right hand.
“Ah, Wally? You are Wally, right?” Wally nodded slowly. “Are you sure? Because You don’t seem sure.” Wally squeaked out a quiet “Yes.”
“Well well, Wally. I finally get to meet you. On my flight over I was thinking how exciting it would be to meet you. Any idea why I would be excited? Any idea, Wally?” Wally shook his head “no.”
“I was excited to meet you because I wanted to see what type of person who calls himself a salesman can have only met 24% of his monthly quota selling what we sell. I mean, slap a tie on a chimpanzee and he could outperform 24%. You better hope no monkeys have escaped the zoo, Wally. Because right now I’d take a baboon over you. But this is your lucky day. It’s your luck day, Wally, because in the next five minutes I’m going to make you a salesman. ” Allen turned his back to Wally and wrote on top of the board the phrase, “Know what you’re selling.”
“Rule 1. ‘Know what you’re selling.’ What are we selling Wally?”
Wally stammered. “Memories?”
Allen laughed an angry laugh. “See, that’s your first problem, Wally. You don’t know what you’re selling. Yes, they are memories. Other’s memories. But that’s not what they really are. That’s not what you’re selling. You’re selling dreams, Wally. That’s what all of you are selling.” Allen wrote down “dreams” on the board and pointed at the word as he held the marker in his hand. “You’re selling dreams. Someone want to fly to the moon? You sell them that dream. Someone wants to know what it’s like to score the winning touchdown in the National Championship? You sell them that dream. Anything they want. Anything they desire. Whatever it is, we have it and we can make any dream come true. We sell dreams. Not memories, but dreams.”
That reminded Wally of another wrapper he had saved in his pocket. “Inspire envy.” He would have to look for it later.
“Rule 2. ’Know who you are.’ Who are you Wally?” Allen didn’t wait for a response. He turned around again and wrote below that, “dream makers.”
“Wally, you’re a dream maker. All of you are dream makers. You make others’ dreams come through. Whatever they fantasize you turn into a reality. Salesmen may only meet 45% of their quotas. Dream makers far exceed any quota you put in front of them.” Allen turned back to the board. “Rule 3. ’Get out of the way of the product.’” Allen put down the marker. “That’s the last rule. This product should sell itself. It should fly off the showroom. We shouldn’t need you, any of you. Get out of the product’s way. Make your pitch about the product, not about you, or about your tired suit, or about the quota you need to make, or about anything other than the dreams themselves. So that’s it, Wally. That’s it, people.” Allen fixed his tie, and pulled on the end of his shirt sleeves.
“This is your one and only chance. You go out on that floor and sell dreams. Because if you don’t, there are a lot of people out there, salespeople, real salespeople, who would kill for your job. Folks who are tired of selling the Buicks and the 3D TVs and the washers and dryers and are chomping at the bit to be in your shoes. I won’t be coming back, fellows. Don’t turn it around and there won’t be any more pep talks. It’ll just be you on the unemployment line wondering how you blew it. Next person who comes in through those doors Wally, he’s your customer. You don’t close the deal, you lose your job, Wally. That simple. How about that for incentive?” Allen paused for a second and looked around the room.
“And the rest of you are not far behind. I want you selling, and not just selling, but selling the bigger dreams, the bigger the better. Someone wants to spend the weekend at Miami Beach? How about a week in Disney? Or two weeks in Maui? Or a cruise around Europe? Maybe experience traveling to the moon like an astronaut? Someone wants the memory of someone who has a bachelors? Why stop there? Why not a law school degree? Or medical school? And a residency? Upsell, upsell, upsell. You won’t meet your quotas selling two nights at a Hampton in Naples, Florida.”
Allen took one last look around the room. “I’ll never see you again. Sell, don’t sell, it doesn’t affect me in the least. But if you want to pay your bills, you want to have a job to come to, then you take what I say to heart and act like salesmen.” And with that Allen left. Wally finally raised his head. As promised, he was given the opportunity to sell.
A man wearing gray slacks, black leather shoes, and a striped dress shirt walked into the showroom. He looked up at the video screens displaying vacations and events from around the world. The floor manager walked over to Wally and told him to take care of the customer. Wally nodded and walked toward the man. He reached into his pocket for another cough drop. The wrapper read, “Turn can-do into can-did.” ”Can-did,” Wally thought to himself.
“Hi, I’m Wally, how can I help you,” Wally held out his hand and offered a weak handshake.
“Tim. I’m looking to buy a memory of a vacation.”
“That’s great. We sell those. We sell lots of those. Maybe the moon?”
“The moon? I was thinking of something less exotic.”
This was going to be harder than Wally thought. ”Well, what did you have in mind?”
“Somewhere with water, lots of water. I want to go diving, snorkeling. Do you sell those type of vacations?”
Wally had no idea. ”Sure, we sell those. Diving. Snorkeling. Lots of water.” Wally pulled out his tablet and typed in those words. Turns out they had a bunch of those vacations available for download. Who knew.
“Just one thing, I don’t know how to swim. Is that going to be a problem?” Another salesman had been eavesdropping. He was one of the few who felt sorry for Wally.
“Excuse me, I overheard your conversation. I’m John. I work with Wally. As Wally pulls up a few vacations on the screens above us,” John helped Wally do just that, “let me tell you one of the benefits of these vacations. Everything that happens in them becomes part of you, part of your memories. Therefore, not only do you not need to know how to swim or dive to purchase a trip where the person was swimming and diving, but after making those memories yours, you now know how to swim and dive. You could leave this place not only with the memory of swimming through a sunken ship in full scuba gear, but you can go walk over this afternoon to a diving center, pass the certification test with flying colors and go diving on your own without a concern in the world.”
“Really? I always did want to learn to swim and scuba, but the water, it’s always scared me a little.”
“Not anymore. You can buy the memory of a seasoned swimmer and diver. Not only will you no longer hesitate to go into the water, you’ll feel like a fish when you’re out of it.”
Tim smiled. ”One last thing. There’s this girl. I told her I was going on this trip. I didn’t mention I was buying someone else’s memory. She thought it was so cool. See, she’s a diver.”
“You’ll have a lot to talk about when you see her again.”
“What’s the most exotic diving trip you have?”
“Wally will help you find one. Once you two are done, he’ll walk you over to Tony so he can prepare a payment plan that meets your needs. Thanks so much Tim, and enjoy your trip.” John grabbed Wally’s shoulder, “That’s how you do it. Ring it up as your sale. A few more of those and you’ll earn job security.”
A few weeks later Tim ran into Marilyn, the girl he was trying to impress. He told her all about the trip, about the ship wreck, the coral, the fish, how deep he had dived. She suggested they go the beach the following week and snorkel.
“I had no idea you were so into the water.” Marilyn commented.
“Yeah, I guess I don’t really talk about it.”
“Yeah, like never. And I’m still mad.”
Tim looked confused. ”Mad about what?”
“I asked you to send me a postcard. Two weeks and no postcard?” Marilyn said, smiling.
“Oh yeah, about that. Never really came across one. You don’t find too many postcards these days.”
“No I suppose not. Well, now we have a hobby in common. I couldn’t imagine being away from the water. I’ve been snorkeling since I was five.”
Of course what Tim didn’t know was that Marilyn, up until a few years ago, was scared to death of the water. She had bought a lifetime of memories from a former olympic swimmer. Of course, Marilyn did not remember her child hood fears. As far as she knew, she had been born to live in the sea.
Before I became a litigator, I had a lot of preconceived notions of what litigators do. Some were accurate. Most were not. Before going down the road of litigation, you need to evaluate both the pros and cons.
First, the bad news.
Litigation is adversarial. If you hate conflict, don’t expect to enjoy litigation. Your client is either suing someone or being sued. There is no love loss here. The parties often expect their attorneys to be aggressive, sometimes overly so. Expect opposing counsel to come gunning for you.
Litigation is driven by deadlines. There are deadlines for everything. Answers to interrogatories, requests for production and requests for admission. Expert reports and expert depositions. Discovery cutoffs and looming trial dates. Multiply this by 20 to 50 cases, and it’s a surprise you’re doing anything but extinguishing the next fire. Attorneys who are in short supply of case management skills may find these deadlines dictating their practices to them.
Litigation is not like television. Some of us went to law school, in part, because of popular lawyer shows – L.A. Law, The Practice or Law & Order to name a few. It looked pretty cool on television, didn’t it? But art does not always imitate life. The real practice of law is not glamorous. Most of your time is not trying high-profile cases. More like it, most of your time is spent in front of your computer, doing research, drafting memos and responding to e-mails. In short, litigation may not live up to your expectations.
You never stop litigating. If you’re conscientious, it’s hard to leave the work at the office. At home, you wonder if you should have asked that extra question in deposition. When you’re out, you worry about whether the motion was filed. You even find that the conversations with your loved ones have turned into cross examinations. It’s hard to leave it at the office.
You will never know enough. It takes time to learn the practice well enough to feel comfortable in your own skin as a litigator. For some it takes 5 years. Others, 10 years. Some never reach a comfort level. It is a long process. You don’t become a litigator overnight.
A lot depends on instinct, and instinct takes time. A lot that is asked of us as litigators requires quick decisions – quick decisions at depositions, at hearings and at trials, to name a few. To make those decisions, we need to rely on our instincts, and instincts take time to develop. As a young litigator, you will second guess yourself a great deal. Only experience puts a stop to it.
Now, the good news.
There’s never a dull moment. Yes there is research to do and memos to write, but litigation is fast-paced and you will get swept up in it. You will plan how to beat the other side and you will use all your wits and heart and energy to see that plan through. All along, surprises and challenges will pop up and you will have to deal with them. It can be a bit terrifying but it certainly isn’t boring.
It’s like a good chess match. The other side wants to win. So do you. He’s making all sorts of moves to take your king, while you defend it, simultaneously trying to take his. For every move there’s a counter move, and nothing is as it seems. You like a good chess match? You’ve come to the right place.
Sometimes, it is like television. Yes, you spend an awful amount of time in front of the computer. Your office is your home away from home. But sometimes you get to venture out. Sometimes you destroy that expert in deposition. Sometimes you knock it out of the park at the hearing. And sometimes, yes sometimes, you actually get to try a case, and, get this, win. Sometimes you are Michael Kuzak from L.A. Law.
It improves with age. Like fine wine, being a lawyer improves with age. The longer you practice, the more your skills improve, the more law you learn and the more comfortable you become with the practice of law. If you get past the fear and uncertainty of the first few years, you will enjoy the fruits of your hard work.
When it comes to litigation, there are good things and there are bad things. If you can learn to enjoy the good and not linger on the bad, you may just make a career of it.
We exchange them at networking events, cocktails, conferences, you name it. But what do you do with the ones you bring back to the office? While at the event or shortly thereafter, jot something on the card to remind you who the person is behind the card. Perhaps an area of practice, community involvement or a hobby. That way the card will mean something to you when you look at it later. After the event, send an e-mail or hand written note to follow-up and possibly suggest getting together for coffee, breakfast or lunch and suggest a connection on LinkedIn or Facebook. Import the information about the new contact into your computer, including not only the information on the card but any information you remember about the person from your meeting with her. Again, keep in mind that three months from now that card probably won’t mean anything to you and you’ll need something to remind you about who the person is, where you met them, how you were introduced, what you have in common and so forth. Remembering these details will facilitate developing relationships that may blossom into mutually beneficial business relationships.
Frank Ramos