Posted on: 7/12/2012
Lester C. Brock III, Harman Claytor Corrigan
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Understanding your role in the litigation process is of paramount importance to your development as an attorney and the success of your practice. As new attorneys fresh out of law school and armed with a law degree and a bar license but little to no practical experience, most of us found ourselves at a law firm serving a supporting role and relying on a senior, more experienced attorney to teach us how to actually be a lawyer. Whether working as second or third chair, or even farther removed, you have gained invaluable experience on how to practice law by working alongside seasoned attorneys. Soon the day will come, if it has not arrived already, when you will be assigned to handle a case on your own. Most likely, a senior associate or partner will oversee the case and assist as necessary, but your ability to competently and confidently make the transition from second to first chair can have a significant effect on how the senior attorneys at your firm view your continued ascension within the firm. Understanding the different expectations for supporting and leading roles as trial counsel will help you make the transition smoothly and successfully.
Role as Second Chair
Your job as second chair is to assist the first chair in any way, shape or form, and to give that person the peace of mind of knowing that somebody else who is reliable and capable is keeping an eye on the file. If the first chair questions whether you have your role under control, you risk violating the trust and confidence that has been placed in you. This will undoubtedly have a negative impact on your working relationship with that attorney and your prospects for one day ascending to first chair. Thus, understanding your role as second chair and the expectations that go with it is the first step towards succeeding as second chair.
- You are the workhorse. As second chair on a case, you will likely perform the brunt of the work on the file. The first chair devises the trial strategy, and you help implement it. While the first chair's focus is on the big picture, you are there to support the first chair and to handle many of the day-to-day tasks. A good second chair does everything assigned by the first chair without having to be asked twice, and an even better second chair anticipates additional issues and volunteers to address them.
- Acknowledge everything and get the ball rolling. Acknowledge every assignment immediately, and start the project as soon as possible, even if just to identify what will be involved so that you can come back to it later. There is nothing worse than delaying what seems like a simple project, only to find out that the issue is bigger than you thought, or the information you need to complete the project is in someone else's hands and you are relying on them to get it to you.
- Keep the first chair updated with the progress of your assignments and any upcoming deadlines. It reminds them that you are diligently working on the case and reassures them that the file is in good hands.
- Raise issues, not questions. The first chair attorney needs your help, and that includes raising issues that you come across. The senior attorney is there to learn from, but most senior attorneys expect that you will do everything in your power to answer your questions yourself before coming to them for answers. Keep in mind that as a young attorney, you don't know what you don't know, and you only reveal your ignorance by asking unnecessary questions. Become self reliant, and this will serve you well when you are first chair and have to answer most of your own questions.
- Provide your best work product. Whenever you submit a draft of any document to a senior attorney, make sure it is the best product you can produce, because your work product is a reflection of you and the firm. Take as much time as you need to proof read the final product enough times that you are confident there are no mistakes. When you transition to first chair, you may not have a senior attorney reviewing everything that goes out, so getting in the habit of error proofing your work becomes all the more important. Remember, even as first chair you will likely have to copy the senior attorney on everything you send out. If you think it is embarrassing when a senior partner finds a mistake in a draft, imagine the feeling when that same partner finds mistakes in a document that you already sent out.
- Be the go-to person. As the second chair attorney, you should know more about the facts and details of the case than anyone else. Given your role in the case and the fact that you will likely handle the first drafts of most of the work product that is produced, you are in the best position to be the go-to person on the file. Compiling and filtering all of the information in a case can be a daunting task, and it will require you to have good organizational skills. However, developing a reputation for either knowing the details of the case, or knowing where to quickly find the details of the case, will make you a valued asset to the team.
- Learn what is effective. The supporting role of a second chair attorney can often times seem frustrating, particularly when you are answering round after round of discovery, or reviewing hundreds or thousands of documents, always having to pass the case off to the first chair attorney for a key deposition or an important hearing. However, watching and learning from a seasoned attorney is how you fine tune the skills you need to be an effective attorney. Every attorney has his or her own style and demeanor, and some attorneys are more effective than others. When working as second chair, you have the opportunity to sit back and watch the other attorneys in the case and to objectively evaluate what is most effective. You have to recognize your own style and limitations, but by watching how other attorneys handle themselves you will learn what works and what doesn't, and you can decide what you want to emulate.
Role as First Chair
The term first chair implies that there is somebody else in a second chair position supporting you. More likely, the cases you are assigned to handle as first chair will be small enough that you will work alone with just the support of your legal assistant, though the assigning partner will remain involved and may sit with you at trial in a supporting role. However, for purposes of this discussion, the term first chair refers to any case that you are handling, regardless of whether there is a second chair. As you transition into handling cases on your own, you will rely upon the skills and techniques you learned while working in a support role as second chair. Of course, the biggest difference is that as first chair you are responsible for the entirety of the case. If you have successfully performed your second chair responsibilities, then transitioning to first chair should not be too difficult or unfamiliar. However, there are a few things to keep in mind that will ease the transition and help you avoid any pitfalls.
- Know the expectations of the assigning attorney. Unless you are handling a case for your own client, there is another attorney, likely a partner, who trusts you enough to handle a case for his or her client. Put yourself in that attorney's shoes for a moment, and consider the expectations that you would have if you gave a younger and less experienced attorney a case to handle for your client. You would expect a prompt and thorough investigation of the facts and analysis of the case. You would expect timely reporting to the client, including immediate responses to any phone or email inquiries. You would expect to be kept in the loop and consulted on all significant issues, trial strategies and decisions. In short, you would expect that attorney to handle the case with the utmost care and consideration. Understanding these expectations, and keeping the assigning attorney's perspective in mind, will help you succeed in handling the file.
- Know the expectations of the client. Being an effective advocate means knowing your client's expectations. The client may have written guidelines that spell out general expectations. However, you need to understand the client's specific expectations for the individual case. The only way to know this is to discuss the case with your contact and clarify what they want to achieve. Discussing this early on will help you develop a good working relationship with the client.
- Never underestimate the importance of good and timely reporting. Reporting is a part of the client's expectations, but it is important enough to warrant its own section. As lead attorney on the case, you will be responsible for keeping everyone informed and making sure all reporting is timely performed. After all, the relationship that you develop with the client and the impression that you impart in your day-to-day handling of the case can be more important to your firm's relationship with that client than the outcome of a particular case. If the client has formal written guidelines for reporting, make sure you follow them in every respect. Many attorneys treat formal reporting guidelines as just that – guidelines. That is a mistake. Treat them like deadlines. Often times, the person you are reporting to is reporting up the chain of command, and poor or untimely reports can make that person look bad to his or her superior. You want to make your client contact look good. In a time when fewer and fewer cases are going to trial, there are not as many opportunities to prove your capabilities in the courtroom. Instead, the clients will judge your performance by how well you handle the case up until the time it is settled or otherwise resolved. Thus, a good portion of your efforts should be focused on client management and reporting.
- Develop a road map. As first chair, the responsibility for developing a trial strategy falls on you, and this can be daunting. Avoid becoming overwhelmed by developing a road map for the case. After all, if you do not know where you are going, you cannot expect to get there. As they say, hindsight is 20/20, so try starting at the end. An often cited, but rarely used, tip is to start with the jury instructions and then work backwards. At the conclusion of the trial, all of the evidence is filtered through the jury instructions, and so identifying the applicable jury instructions up front will help you keep your focus on the important issues in the case. Make a list of what evidence you will need to offer and how you plan to offer it, and make a note of potential evidentiary issues. It is easy to lose the forest for the trees, but developing a road map for the case will help you stay on course and identify the important factual, legal and evidentiary issues early on in the case.
- Move the ball forward. Everything you do on a case should be done with an eye to moving the case forward. With your road map, you will know what evidence you need and where you will get it. Avoid entangling yourself in petty issues or disputes with opposing counsel; you do not need to win every fight. Identify what you need to do to move your case forward along your road map, and focus on those tasks.
- Clean your plate. As first chair, every document in the case comes to you, and it is your responsibility to see that it receives the appropriate response. When something lands on your plate, address it immediately and either complete it yourself or delegate it to the appropriate person. Fight the temptation to set it aside for later. Otherwise, you may soon find yourself behind and overwhelmed. Once you get behind, you will have to set more and more things aside, and you will find yourself shuffling papers rather than completing tasks.
- Investigate early. Perform as much of your factual investigation as early as possible, and record everything in a detailed and organized fashion. Identify and interview key witnesses. Locate and obtain documents and other records. If there is an accident scene, visit it. Gather all of the information you can as early as you can, so that you can then work on comprehending all of the information. Finding out a key fact is important, but it is not as important as knowing how that key fact fits together with the rest of the evidence. Use chronologies, timelines, or whatever tools you find useful to help you understand how all the facts fit together. Many attorneys fall into the trap of plodding along through discovery, gathering the facts but never organizing them into a cohesive body of evidence. That is a dangerous habit to get into. When preparing for trial, they find they have gaps and holes in their case.
- Stay organized. Organization should be the cornerstone of every case. If you do not start off organized, it is harder to become organized as the case progresses. Having a well organized file will not only help you be a better and more prepared attorney, it will also relieve much of the stress involved in litigation. Make sure you have a good system in place for calendaring all deadlines, for handling and filing documents, and for executing your daily tasks. Ask around your office to see if other people have better systems in place that you can use. Also, organization should not stop with an individual file; you should strive for organization in all aspects of your practice. Even just appearing disorganized can negatively impact the confidence others have in you and may cause them to question whether you can be trusted to handle a case on your own. As simple an effort as making sure your desk is clean at the day can help you stay, or at least appear, organized.
- Remain confident and proactive. Being confident and self-assured is a necessity when handling a case as first chair. However, avoid appearing overly confident or casual in your handling of the case, as you could come across as lacking concern. Many inexperienced attorneys fear the uncertainty of the unknown. They are afraid of missing a fact, or a case, or some procedural issue that may result in the exclusion of key evidence. Keep in mind that you can never anticipate everything, and you will do yourself more harm than good by worrying about what you do not know. Gaining more experience is the best way to become more confident in your practice, but for an attorney transitioning to first chair there will inevitably be things you encounter that you do not expect or know how to handle. The next best thing to experience is preparation. If you are well prepared, you are less likely to miss something, and you are better able to figure out how to deal with the unexpected.
- Know the local rules. Make sure you identify any local court rules that may apply. You do not want to be caught off guard by a little known local rule. If you are unfamiliar with a particular court, contact the judge's law clerk or assistant to find out if there is anything in particular that the court or judge requires.
- Prepare, prepare, prepare. A general rule of thumb is that you should prepare at least three days for every day of trial. Of course, every case is different, and you will never regret preparing for trial early.
- Have a trial or bench brief handy. For any legal or evidentiary issues you anticipate arising at trial, prepare a short brief on the issue with copies of the cited authority. This will give you an edge over opposing counsel. You will find that the same legal and evidentiary issues pop up in other cases, so a good brief on the issues will pay off in the future.
- Preserve the record. Even the most experienced attorneys often make the mistake of failing to properly preserve the record for appeal. Make sure the judge rules on all motions, and note all objections clearly and timely. If you are on the losing end of a ruling, make sure you proffer any excluded evidence to ensure that it can be considered on appeal.
Putting It All Together
The experience you gain while working in a support role will help equip you to handle cases as first chair. Similarly, handling cases as first chair will make you a better second chair attorney, because you will have a greater understanding of what the first chair needs and expects from you. The first step to succeeding in either role is understanding the expectations that others have of you. The next step is learning from the other attorneys involved in the case, and then applying what works into your own experience and practice.
Les Brock is a senior associate with the Richmond, Virginia civil litigation firm Harman, Claytor, Corrigan & Wellman, P.C. He handles a wide variety of civil litigation matters with an emphasis on construction defect, product liability and premises liability cases. He is a member of the DRI Young Lawyers Committee and also serves as the DRI State Representative for Virginia. For more information, go to www.hccw.com or contact him at lbrock@hccw.com