May 2, 2002
I tell my law students to never apologize in advance about anything they are going to say to a jury or any other audience, for that matter. I am going to break my own rule and caution you about one thing. I customarily get up in the morning no later than 5:00 a.m., and, after 40 years as a trial lawyer, and 3 different kinds of blood pressure medicine during the day, at this time of night, I am usually sound asleep. If I say anything untoward or that sounds a bit peculiar, please take it with a grain of salt, considering the lateness of the hour.
You know, it is really not easy to come up with something to talk about when the group listening to you is primarily comprised of your peers who know as much or more than you do about any subject you can come up with and who are going to be bored to tears if anything said sounds like a C.L.E. program. We also have with us a small group of special Mercer law students, and I have tried to think of a topic that will have some interest to them. At any rate, you can rest assured that this is not going to be a technical talk of any kind and that it is going to be relatively short. I decided to talk about what most of us know the most about - being a trial lawyer.
The organization (The Bootle Inn of Court) exists for the benefit of trial lawyers, law students, and, I suppose to some extent for the courts who have to deal with trial lawyers. During the last 10 years or so there has been an absolute glut of TV shows about trial lawyers. We now have a Court TV channel that is widely watched by lawyers and non-lawyers. From time to time, I am asked by law students and others, "What is a trial lawyer?" or "How do you become a trial lawyer?" These are not particularly easy questions to answer. If I asked those questions of everyone in this room, each of you would probably have a somewhat different answer, because you would consider the questions from the perspective of your life in the law, whether as a lawyer, Judge, teacher or student. I read the other day that someone once defined "history" as (and this is a quote) "just one damn thing after another." That probably describes life in general and it certainly describes, at least, some days in our lives as trial lawyers.
The truth is, a trial lawyer is kind of a mosaic of law school training, learning and experience, personal habits, and genetics, all eventually managing to create what is basically a "state of mind," a trial lawyer's mind. Now, I want this to be kind of an audience participation talk (so we can all stay awake after a big meal). I want you to think about these questions.
How did we (a group of people like this) get the way we are? And why do we think the way we do? It's a cinch that we don't get there just on our own. As trial lawyers, who did we (you) learn from? Who were our (your) mentors? Who helped shape us (you) to think and act the way we (you) do? Have we (you) learned any really fundamental things about the practice of our profession? These are interesting questions to ask yourselves, and, I find that it is kind of fascinating to think about those questions regarding my own life as a lawyer. I want to share with you for just a few minutes some thoughts (brought on by these questions) that I have about the people I believe have in my, right now, 40 years in the law shaped (for better or worse) the way I think and act as a trial lawyer. It is likely that some of us in this room share many of these experiences in common. As we go along, if you think about these type of experiences in your own life, I believe you will find it an enjoyable and interesting exercise. For our younger lawyers and law students, I have learned things about practicing our profession that I hope will help them in their future lives as trial lawyers. Now there is going to be a point to this kind of rambling discourse that I am going to engage in, so I will ask you to bear with me.
One of the first things I learned that helped shape my career was in law school, when Mr. Rehberg taught me, as he has so many over the years, that I was not cut out to be a property lawyer. Part of becoming a trial lawyer is knowing what you can't do. I think I got lost somewhere in between "livery of seisin" and "usufructs" and never quite recovered. The lesson I learned is that it is a good thing, as a lawyer, to know your limitations, whatever they may be. We all have them!
I was fortunate to have three great mentors to learn from. Judge Bootle, Floyd Buford and Hank O'Neal. Those three men really knew a lot about the courtroom and lawyering. I suspect that every experienced lawyer here (if you will think about it) had at least one or more special mentors - someone who took an interest in you and your development as a lawyer. It is very, very difficult to succeed without that kind of assistance.
When I clerked for Judge Bootle, I learned to "always read the footnotes" (that's where the law is) and that, when talking to a court or jury, it is advisable to "get to the point." Since the advent of TV, no one comes to the courthouse looking for amusement or for a way to pass the time of day. Every time he tried a case, Judge Bootle would take a few minutes to critique the lawyers' performances for me. Failing to get to the point and talking about unimportant things seemed to be his primary pet peeves.
When I worked for Floyd Buford in the United States Attorney's Office, I learned primarily from watching and helping him try cases, that "a tank will always crush a jeep!" Any of you who ever saw Floyd try a case, especially in his prime, will understand the metaphor. One side or the other will always dominate and control a trial - Floyd was always in control.
I learned a lot from Hank O'Neal in the 15 years we were together, but the most fundamental thing I learned was that about 50% of trial lawyering is a matter of courage, discipline and determination, and that you cannot be a decent trial lawyer if you are afraid of too many things (including hard work). He used to tell Lamar Sizemore and me frequently that "the courtroom, just like the operating room, is no place for school boys."
I learned from our now departed friend, Lawyer Tom Jackson, that some cases are worth trying even though you will probably lose, or they will be unprofitable. No case ever seemed too tough or too much of an economic hardship for Tom to tackle. Tom and I tried many cases against each other. We were never on the same side of anything, yet we always remained very good friends, and he was, I believe, an inspiration to many, hopefully, many in this room.
How many people here ever saw Mr. W. O. Cooper try a case? The clear lesson from "Colonel Cooper" was that arguing a case to a jury was not law, but art. His ability to speak and persuade always helped his clients. I am old enough to have not only seen Mr. Cooper work, but to have helped prosecute some cases he defended. It was an enjoyable learning experience from a tough and skilled advocate.
I learned from Wallace Miller, Jr. and Reese Watkins, sometimes affectionately referred to as "crooked finger," that if a case has a fatal weakness, a good lawyer will surely find it no matter how well you dress it up. Trying to run a bluff in our profession, just as in a poker game, is a very hazardous undertaking.
I learned from "Mr. Ed" Taylor (how many people remember "Mr. Ed"?) to always, without fail, go see the witnesses yourself and find out, face-to-face, what they have to say and see with your own eyes and hear with your own ears whether they are believable. There is a lot more to trial preparation than sitting in an office and looking at a stack of papers and some books (or nowadays, a computer).
During the time I was an Assistant U. S. Attorney, and later in private practice, I tried probably 30-40 cases before Judge Elliott. I learned from him that it is just as important how you say something to a jury as it is what you say. His charges to the jury were a good lesson on this point.
I learned from trying cases against Gordon Young and Walter "Pop" Owens, both of the Columbus Bar, that you can be courteous in a courtroom without being the least bit "timid" or afraid to make your point in a very persuasive way.
I learned from my partner, Lamar Sizemore, Jr., now Judge Sizemore, that ingenuity, persistence, and an open mind can produce a "deal" (a settlement) in even the most difficult cases.
I learned from Judge Bill Adams' dad, Charles, that the law is, among other things, a business, and must be managed accordingly. If you ignore this fact very long, you will have a short career. Natural selection is at work in our profession.
I have learned from my association with lawyers like Frank Jones, Bob Hicks, Albert Reichert, Sr., Judge Bill Hemingway and Hardy Gregory, Jr. how the consummate lawyer looks, acts and thinks and that a lawyer's presence, and the respect he or she commands, has a lot to do with a successful career.
I have learned from Denny Groover and Deryl Dantzler that pure brain power is a wonderful asset and that they had more than their fair share.
I learned from my classmate and friend Mallory Atkinson, Jr. that life and a career can be cut short but still be meaningful. I learned from his father, Judge Atkinson, in law school, that there is no substitute for a sound knowledge of the fundamental rules of evidence and procedure that you are going to spend your life working with. Judge Atkinson was short on philosophy and long on basics. He did not waste time on a "brooding omnipresence in the sky." He knew how to teach law students about things that would help them pass the Bar and be competent trial lawyers.
I learned from Dean Quarles (how many people here knew him?) that giving a helping hand to an aspiring lawyer is a good investment - something we should all do when the opportunity presents itself.
I have learned from many of the trial judges (like Judge Morgan, Judge Owens, Judge Culpepper, Judge Phillips and others) that I have appeared before over the years that if you are well prepared and if you conduct yourself honestly and ethically, they will respect you even when the cause you advocate is unpopular and more than likely "a loser."
I learned from Judge Hugh Lawson's father, Roger (who was a great friend of mine), that getting temporary restraining orders signed requires consummate skills. The novice need not attempt this feat. Mr. Lawson was the best I ever saw in accomplishing that task.
I learned from watching Mr. Baldwin Martin, Sr. that no matter how badly things are going in the courtroom, don't lose your confidence, or, if you do lose it, don't let it show. He followed Winston Churchill's admonition - never, never, never, never give up!!
Now, without attribution to anyone, I want to finish with a few things that I believe are kind of truisms in our profession: (1) You cannot read a book and become a trial lawyer. It is just like learning to shoot a jump shot - it takes a lot of repetition. (2) You should never generalize, stereotype, or make snap judgments about people. Take them one at a time and base your conclusions on something sound. Most people will do the right thing when given a fair opportunity. (3) You should never let yourself get inordinately angry and never let your feelings get hurt, unless it is by someone you really care about on a personal level. If you violate these rules, you will be upset about something almost all the time, given the adversarial nature of our profession. It will shorten and compromise your career. (4) Do your best to make friends of your enemies and never make enemies of your friends. (5) Acceptance by your peers is more professionally satisfying than a financial statement that impresses your banker.
Now the point of this somewhat disconnected talk is to suggest that our profession will be a better place to labor if:
1. As older, experienced lawyers and judges, we remember that we are setting an example for those who are going to follow us and endeavor to make that example one worthy of emulation; and,
2. We take the time to mentor and train younger lawyers without any expected reward other than the satisfaction of knowing that some of the positive things we have learned will be passed along to the next generation.
AND FINALLY, I've learned that it is a wonderful thing to have good friends and colleagues like this group to spend time with and I thank you for patiently allowing me these few minutes to reminisce about some of the things I believe we share in common.
Thank you.