What goes on when a client and his lawyer prepare for trial? Many many things, but there's brainstorming: pushing the boundaries of thought with no bad consequences. Then there's something I've learned called Psychodrama: practicing the client's story told in action. Ideas, self examination and roleplay can grow into something great to help a judge and jury understand a case. Sometimes a focus group can test drive theories and themes: The ones you thought were great actually stink; others are super and you hadn't thought of them. The practice of law doesn't have to be drab for the attorney, client or judge. As two historical giants said at different times, "Imagination is more important than knowledge," and "the spirit of the law...keeps justice alive."
Observations made by Albert Einstein and Earl Warren, respectively. Photo by Luigi Ciuffetelli.
Well, I've got this space to fill here and I'll make a reading recommendation and tell you a little bit about why I do what I do. I've never been a John Grisham fan, but his novel The Appeal got a good review, so I bought and devoured it in a couple of sittings. It's about the intersection of politics and justice in a southern state. People from other countries can't even believe we in the United States elect judges, but then again we have juries and most of them don't. The Appeal is about the election of a state supreme court justice and how that changes the outcome of a single case, based on a single vote by a newly elected judge. I recommend The Appeal for its exploration, in fiction of this uniquely American problem.
But nevertheless, the passage from The Appeal I found most humorous was Grisham's description of people like me, who call themselves trial lawyers. Grisham writes of Wes, the novel's protagonist, himself a trial lawyer, as follows:
"Though there were times when Wes wanted to choke them as a whole, he felt at home [with trial lawyers]. These were his colleagues, his fellow warriors, and he admired them. They could be arrogant, bullish, dogmatic, and they were often their own worst enemies. But no one fought as hard for the little guy.
Trial lawyers, always a colorful and eclectic bunch. Cowboys, rogues, radicals, longhairs, corporate suits, flamboyant mavericks, bikers, deacons, good ole boys, street hustlers, pure ambulance chasers, faces from billboards and yellow pages and early morning television. They were anything but boring. They fought among themselves like a violent family, yet they had the ability to stop bickering, circle the wagons, and attack their enemies. They came from the cities, where they feuded over cases and clients, and they came from the small towns, where they honed their skills before simple jurors reluctant to part with anyone's money. Some had jets and buzzed around the country piecing together the latest class action in the latest mass tort. Others were repulsed by the mass tort game and clung proudly to the tradition of trying legitimate cases one at a time. The new breed were entrepreneurs who filed cases in bulk and settled them that way, rarely facing a jury. Others lived for the thrill of the courtroom. A few did their work in firms where they pooled money and talent, but firms of trial lawyers were notoriously difficult to keep together. Lost were lone gunmen too eccentric to keep much of a staff. Some made millions each year, others scraped by, most were in the $250,000 range. A few were broke at the moment. Many were up one year and clown the next, always on the roller coaster and always willing to roll the dice.
If they shared anything, it was a streak of fierce independence and the thrill of representing David against Goliath.
On the political right, there is the establishment, the money, and big business and the myriad groups it finances. On the left, there are the minorities, labor unions, schoolteachers, and the trial lawyers. Only the trial lawyers have money, and it's pocket change compared with big business."
© John Grisham, 2008
THE PRACTICE OF LAW is persuasion guided by rules and creativity; humor is allowed. I am proud to have designed this site mostly on my own. What you see is basically me. I offer a few bells and whistles, but mostly facts and opinions, with links to back me up.
JURY VERDICTS ARE GREAT. There is nothing better than having the conscience of the community validate your work. I’ve had some biggies, but they can be reduced on appeal, thrown out, and take years to complete. Sometimes it is better to compromise. But I crave a trial. I graduated from The Trial Lawyer’s College in 2003, and am always learning how to improve my communication skills by attending and teaching at Lawyers' Continuing Legal Education Programs - more than required by the state. Mind you, if you want to test your case in court, it is a significant benefit to hiring a lawyer with multiple jury verdicts who also knows appellate rules and culture. Trial outcomes can be affected by those rules, and many trial lawyers don't know them so well. I consider myself a trial lawyer, but by sheer number, I have perfected more appeals than completed trials to verdict - though some appeals are small and the number is coming close to even. (Perhaps I'm an appellate lawyer in the guise of a trial lawyer or vice versa.) But ordinarily people can't afford appeals, so I limit my walk upstairs. Meanwhile, trials to verdict are rare, though they are a major reason I love what I do - the possibility that the community will vindicate my client's position. You need a verdict and to sustain the result on appeal. Or settle!
I PRACTICE IN NEW YORK, in federal and state court, but, really, with permission, I can practice anywhere. I am also formally admitted to the U.S. District Courts in Chicago and Connecticut. I argued once to New York’s highest court, the Court of Appeals; all judges ruled in my client’s favor. I'm a member of the U.S. Supreme Court Bar, where I’ve been counsel on two petitions for writs of certiorari - requests to be heard on national issues of law. My requests were denied, unfortunately, along with some 96% of the others. One came close.
I FIGHT FOR employee rights - wage and discrimination claims – and victims of police misconduct. When it is certainly right to do, I represent people harmed by their former lawyers’ egregious mistakes. I cherish appeals and am experienced in both the New York criminal and civil sides of that practice. But, to be blunt, I won't take a case that another lawyer has lost unless there's a real issue and I probably will need to get paid. Appeals are your last resort if your legal claim is so important that you want to take it as far as you can, and can afford it. Maybe, just maybe, yours is the case to change the law. I want that case, but I'll know I might have it only when I see it. I won't take an appeal just to get paid.
To avoid appeals - and reduce trial practice altogether - in 2016, I attended the Harvard Law School Program on Mediation, and have started offering my skills to bring parties together in mediating disputes. I had previously represented many clients in mediation, and find it a good way to settle, even on appeal.
The techniques taught at Harvard, from which I received a Certificate, were different than the common "shuttle diplomacy" techniques employed by many mediators, whereby the neutral moves in confidence from one side to the other arguing the other's case to the opposing side. This method can work and has in most of the cases where I represented the litigant. But is it the best? Rather than an intellectual debate with the parties, one side after the other, the Harvard method teaches to keep parties at one table in the attempt to come up with a resolution that better satisfies everyone. Grievances are aired: It's an important catharsis for someone aggrieved or who feels aggrieved in being sued. The parties know their case best. When they let their guards down, in confidence, and with the ear of a trusted mediator, they are in the best position to find a solution that works. This method takes longer; but it is cheaper, faster and more peaceful to accept a solution than to agree to one with strongly veiled suggestions that "this is your last chance to settle. One of you will die by the sword." I heard this simile applied to the outcome of a jury trial. While such a comparison might carry truth, you should be a major part of the solution.
I've been practicing since 1994, mostly in New York courts, federal and state. I graduated in 1993 from NYU Law School, where I was a member of Law Review, selection to which was based on writing ability alone or writing and grades. (I think mine was writing alone, but I'll never know.) After graduating NYU (then passing the bar), I worked at a large firm litigation department where I did meaningful pro bono work, including civil rights for artists, death-penalty defense and working for people with HIV. I think am the first civil-rights lawyer to have been born of that firm. The day I feel I became a lawyer was the day I walked away from "BigLaw," as it is known, and turned to solving the problems of ordinary citizens. That’s when I began to discovered that I love what I do. Eventually, I found I could enjoy life and simultaneously enjoy being a lawyer. If I hadn't gotten off the track so nicely laid down for me in advance of law school, then done my own thing my own way, I doubt I'd be practicing law today.
Honors, Awards, Speaking Engagements & Writings:
I've been elected to "SuperLawyers," "Best Lawyers in America" and was Peer Reviewed "AV Preeminent" by Martindale. I speak about the meaning, or limits to the meaning, of these monikers, on my page "About Me". My biggest public victories and some big cases where I won some battles but lost the wars are here.
Copyright 2016 Gregory Antollino, Esq.. All rights reserved.