Understand Your Rights. Solve Your Legal Problems
Nailing your first paralegal position was difficult enough, now you’re having a real hard time moving upward. So how do you make Partner? Catherine Thomas, Partner and Co-Head of the London team at JMW Solicitors, talks Lawyer Monthly through the plan.
Elbowing your way into a law partnership requires a plan. Very few will stumble into partnership without thinking about it, but instead will actively chase it down, often over the course of several years. The earlier you start to plan, the better. Each legal partnership has its own particular personality, which will require careful studying if you want to join its ranks, but much of the key preparation for that promotion is common to all firms.
Start behaving as if you are already a partner. The advice I give to even the most junior fee earners in my law firm is always behave as if you are one promotion ahead of your current role. Projecting a more senior image will allow management to imagine you in that next role. If you are not perceived to be partnership material, you won’t get very far. This doesn’t mean starting to boss around your peers (this is unlikely to help with your popularity!) but rather conduct yourself as you believe a partner should. Undertake a critical appraisal of yourself. Think about how you communicate with your colleagues, with clients and everyone else with whom you interact in a professional context. Consider whether you should be putting more effort into training and developing the more junior members of the team; invest in the people around you in the way senior people should. Never underestimate the impact of your clothes on other’s perception of you. If you don’t look the part, you are unlikely to get it. Ditch the saggy cardigans or frayed ties and invest in a wardrobe upgrade. When in work always, without exception, dress like a partner.
A common distinction between partners and more junior fee earners is the extent to which they consider the wider needs and ambitions of the business. Non-partners will often focus their energies on their client work and billable targets without volunteering much, if any, of their time to the development of the business. A good partner will consider and juggle both. Managing clients and a business can often feel as though you have two jobs, with prioritisation of work becoming even more complicated. Show the law firm you are up to the challenge.
Prove your commitment to the partnership by showing you understand what it is trying to achieve and spend time thinking about how you can contribute to that joint effort. If the firm’s ambitions aren’t clear to you, speak to a partner and ask them to enlighten you. There may be detail they can’t share with you, but they should be able to give you the headlines. Make suggestions as to what you could do to help. If they don’t take to your ideas, explain how keen you are and ask them what you can do to help. Get this message out to as many of the decision-makers as you can.
If you are going to make partner, you will need internal support both from your own legal team and the wider firm. Unless you are in a small firm, you will need to become more visible. Extract yourself from your desk. Get to know more of your colleagues, be that through work events or just chatting to someone new at the coffee machine. Email less, step away from your computer and seek people out (this is good advice in life generally); speak to actual human beings face-to-face.
Create your own business plan setting out what you will achieve for the business and how. The process of putting this together is not only good discipline in itself, as it will allow you critically to assess the quality of your ideas, but it is the best way of ensuring you remain focussed over time and achieve your goals. It will also form an important record of what you have been doing. Many partnerships will expect you to submit a business plan as part of your partnership application. You will end up with a higher quality submission if you have been thinking along these lines already and have a record of your own achievements on which to draw.
Having said all of the above, before investing your time executing your plan, consider whether you are currently at the right firm for your ambitions. If it is going to take the retirement or untimely demise of an existing partner before there is even the chance of a promotion, consider a move now. If your law firm is stagnant, get yourself into a dynamic, growing firm where the opportunities for progression will be more plentiful.
How does one use their law degree to pursue the career they want? How does a newly qualified lawyer aim for the executive leadership side of business? How do they begin their degree with this in mind? Kenneth Cutshaw, President & CEO of GCG, here discusses with Lawyer Monthly how to get from a law degree to the top.
Attending law school requires a certain amount of decisiveness. More often than not, the decision to earn a law degree is the result of careful consideration about one’s future, but that does not necessarily mean a definitive career path awaits law school graduates. In fact, with endless options for the application of a legal education, quite the opposite can be true.
A law degree can lay the groundwork for a successful career across myriad industries and functions, including business leadership at the executive level. This is especially true if you know how to leverage your education and make smart career decisions that maximize your value to current and prospective employers.
It is important to recognize that your career may unfold much differently than you anticipate. What fulfills you from a career perspective today may come up short in decades to come, so careful planning and preparation for whatever lies ahead is critical. Above all, at the outset of your career, be open to the opportunities that may arise.
To achieve this level of preparedness, start by diversifying your knowledge base by enrolling in business, economics and leadership courses during your time in school. All organizations – regardless of industry – will require executive leaders who are adept in the financial and economic sides of the business. When those skills merge with a legal background, the value proposition for the company increases many times over.
Recent law school graduates should be open to – and seek out – continuing education in areas of study beyond the law; most organizations will offer ongoing learning and development tools to employees. Taking advantage of these opportunities will afford numerous benefits, including setting you apart from your peers and securing your involvement in strategic decision-making functions within your current and future roles and fields of practice.
Even if you are certain of future aspirations of executive leadership, consider pursuing some form of traditional legal practice, which affords young professionals an array of tangible, transferable skills. Practicing law forces individuals to become critical thinkers, strategic communicators, to see business issues from multiple perspectives, and to develop and employ successful collaboration techniques – all critical characteristics of successful executives. Further, the confidence and credibility that result from time spent in legal practice cannot be understated.
Perhaps the most important resource for a young lawyer whose objective is executive leadership is a lasting relationship with a trusted mentor who will take a vested and long-term interest in your personal and professional development. Even the most successful business leaders rely on the counsel of their mentors, whose guidance can be instrumental when career objectives are unclear or new opportunities arise.
Great mentors do not arise out of thin air; it is the responsibility of the young professional to seek out and foster relationships with potential mentors. Start by asking someone whom you respect, who has diverse experience and a record of success. Be forthcoming about your request and what you hope to gain from the connection, and take measures to ensure the relationship is mutually beneficial. You will only get out of it what you put in, so the more time and resources you invest, the more you will gain.
Finally, nothing will solidify a young lawyer’s candidacy for growth into executive leadership roles more than his or her commitment to delivering results. Whether in a legal or business setting, young professionals should have a singular workplace objective: impressing their clients, colleagues and supervisors. Recent law school graduates should actively seek out tasks that leverage their educational background, even if outside the purview of their day-to-day scope of work. Doing so will earn them the trust and respect of their company’s stakeholders and position them as front-runners for future growth, both within and among the organizations they serve.
Law school graduates, by virtue of their education, are uniquely positioned to contribute at the highest level to any business enterprise in which they are engaged. Taking these steps will help law students and recent graduates prepare for a lifetime of career growth, whether inside the courtroom or inside the boardroom.
Kenneth Cutshaw is the president and CEO of GCG, a leading global provider of legal administration and business process outsourcing solutions. Mr. Cutshaw previously served as president, chief development officer, and chief legal officer for a global restaurant chain; partner at a US -based law firm focusing on international transactions; senior executive with the U. Government; and cofounder of the post-Soviet private university Georgian American University in the Country of Georgia, where he served as its first Dean of Law and Provost.
Erin has more than 20 years of experience handling a full array of family law issues. She is a Certified Family Law Specialist with the State Bar of California. With family law being complex and constantly changing, Erin is committed to maintaining the highest level of experience and proficiency in family law. She speaks with Lawyer Monthly about her main motivation behind specializing in family law, and her work helping victims of domestic violence.
What was the most difficult aspect of working towards your law degree and how did you overcome that?
Law school presented me with a very different way of looking at information. Legal analysis requires a refinement of analytical and critical thinking. One needs to learn to identify the issues presented, apply the law, and learn why one case, rather than another, carries enough weight to set a precedent. I learned the importance of evaluating the facts, applying the law and ensuring that my personal values and preconceived biases or opinions were excluded from that process. I have applied this systematic approach in my 20 years of practice and I am very grateful to my law school and my professors for preparing me to succeed in the practice of law.
I was 21 when I started law school. My life up to that point had been one of a student. Although I worked throughout high school and college, my experience in the “real world” was somewhat limited. The majority of the students in my class were much older. For many of them, obtaining a law degree was a second career or something that they had postponed for a variety of reasons. They had the ability to apply the law in a practical way based on life experiences, which I lacked at that point. In fact, when I first learned about financial regulations in my corporations class, my teacher pulled me aside one day and suggested I read the book, ‘Den of Thieves’, a novel by James B. Stewart, which tells the story of insider-trader on Wall Street in the 1980’s. It was clear to my professor that my lack of business experience impacted my understanding of the stock market, which in turn, was affecting my ability to comprehend and apply some of the financial principals we were learning.
How did you develop the qualities needed to tackle the emotional cases you see in family law?
Family law is emotional. There is simply no getting around that. As a family law lawyer, you are working with individuals during one of the most stressful times in their lives. Feelings are raw, and there is a lot at stake.
It is my responsibility to remind people of what is truly important. People are not using their best judgment if decisions are based on emotion. I try to help my clients see the big picture. I ask my clients to explain to me what “winning” looks like to them. This often helps put things in perspective. It requires people to shift their focus to working on an agreement or solution that both parties can live with.
It is imperative to me that my clients view the process, and their own actions, through the eyes of their children. I remind people that when you say something unkind about one parent to your child, the child often adopts that criticism as being directed at them. Children are perceptive. They are like sponges. They internalise the good and the bad. Children do not deserve to be tangled in the heart strings of their parents.
I also have learned that I cannot effectively advocate for my clients if I am overly enmeshed or emotionally invested with my clients or a particular outcome. My focus needs to be on helping the family get through the process. This is often difficult in and of itself. I need to maintain the same level of integrity and good judgement as I expect from my clients. This often means that I, too, cannot take things personally. Not every attorney governs himself or herself by the same standards as I do. This can be frustrating and disappointing at times and can adversely impact the resolution of the case.
What is a case you are most proud of and why? How did this case further shape the way in which you practiced law in the future?
One of the reasons I decided to go out on my own is because it allows me to represent clients for the Harriet Buhai Center for Family Law. The Center provides legal services for very low-income families. On average, 70% of our clients report domestic violence. Our volunteers (attorneys, paralegals and law students) donated nearly 12,000 hours last year. We offer free legal services and education at six outreach sites regularly throughout the year. The Center has served an average of 900 clients annually over the last five years.
The clients I have represented from the centre have truly changed my life. Their courage and determination, under some of the most horrific conditions imaginable, is nothing short of a miracle. It is the experience of providing meaningful access to justice for the most vulnerable which fills my heart with hope and provides me with the motivation I need at those times when I find the day-to-day practice of family law disheartening.
What further considerations do you need to make when cases involve domestic violence? Moreover, how do you go the extra mile to ensure the safety and comfort of your clients?
When working with victims of domestic violence, my first objective is to safely remove my clients and their children from the immediate physical danger. This is what I consider a short-term safety plan. This often requires intervention of law enforcement and the court. For a long-term safety plan, we need continued oversight by the appropriate authorities, including assistance from schools and trained monitors for supervised visitation.
Once the physical threat has been removed, we work on finding an emotional support team. This may include family members, friends, support groups and individual therapy. I need my clients to trust me, to be open with me, to be able to discuss the details of what has happened. Developing this level of trust does not happen overnight but it is essential for effective representation.
What is the most complex aspect of family law in California, that others are not always aware about?
California is a progressive state. There is a diverse population serviced by the family law courts. This creates novel legal issues which are often cutting edge. It provides lawyers with the opportunity to make a difference, to set a precedent for recognising the multifaceted nature of family relationships in the 21st century.
Also, Los Angeles has a large entertainment industry. We have a 24-hour news cycle. Media is at the court house every day. When children are involved, they often become the “victims” of a highly publicised dissolution and/or custody battle. In those types of cases, I believe we need to find a better way to balance the right of information and the protection of our society’s most vulnerable children.
What was your main motivation for specialising in family law?
I clerked for a family law judge during my last two years of law school. Going into a different type of law never occurred to me. I was hooked from day one. Becoming a family law specialist was the natural progression in my education and career and I am very proud of it.
With family law constantly changing, how do you hope to see things change in the next few years?
I would like to see equal access to effective legal representation, greater resources for family law courts which are overburdened and greater civility and cooperation among lawyers.
Erin L. Grey, Esq.
The Law Offices of Erin L. Grey
11111 Santa Monica Boulevard, Suite 1040
Los Angeles, California 90025
t: (424)248-3463
f: (424)217-4487
www.greyfamilylaw.com
Erin Grey has more than 20 years of experience handling a full array of family law issues with extensive trial experience. She is a Certified Family Law Specialist with the State Bar of California. Family law is complex and constantly changing. As a Certified Specialist, Erin is committed through certification to maintaining the highest level of experience and proficiency in family law.
At the Law Offices of Erin L. Grey, we are devoted to family matters, including dissolution, custody, complex financial issues, prenuptial agreements, and financial elder abuse.
Following on with Lawyer Monthly’s series on law school and careers we talk money and fees. Below Francine Ryan, lecturer in law and member of the Open Justice team at the Open University, discusses several options for hiring legal aid, how lawyers generally operate, and what avenues of support are available to the public.
Recent research found fees for partners at top London law firms is now as high as £1000 per hour, with average hourly rates for senior staff outside the capital exceeding £200. These fees are clearly unaffordable for many but there are alternative ways of accessing legal advice and representation without paying the top hourly rates:
Law firms
Hourly rates for partners at London law firms are out of reach for most individuals but that does not mean instructing a law firm is prohibitive. Law firms offer a range of flexible funding arrangements, including fixed fees or working within a budget. In addition, there are two types of conditional fee agreements (CFA) or damages based agreements (DBA) often referred to as ‘no win, no fee’ cases, under both agreements there is no liability for costs in the event the case is unsuccessful. If the case is successful under a CFA the solicitor is paid their costs plus a success fee which will be a fixed percentage uplift, whereas under a DBA, also known as a contingency fee agreement, the solicitor receives their costs plus a percentage of the compensation awarded. The Solicitors Regulation Authority provides more information on these types of fee arrangements.
Legal aid
Legal aid is run by the Legal Aid Agency, funding is available for certain types of cases. Cuts to legal aid have been made since 2012 and have had a particular impact on civil cases. The civil legal aid helpline offers free confidential advice on debt and housing (if your home is at risk), domestic abuse, separating from an abusive partner, a child being taken into care, special education needs, discrimination and some child abduction cases. Criminal legal aid is also available depending on the type of case and where it is heard. Citizens Advice provides detailed advice on the availability of legal aid.
Legal expenses insurance
Legal expenses insurance is often included in household or car insurance providing access to free legal advice helplines and paying the costs of legal representation. Check your policy documents to see if you are covered.
Trade Union membership
Membership of a trade union often includes free legal advice and representation. Subject to meeting certain conditions the trade union will pay legal costs and disbursements for matters they are prepared to fund.
Pro bono support
Some lawyers will agree to represent a client without charge on a pro bono basis. Free legal assistance from volunteer barristers is provided by the charity, the Bar Pro Bono Unit and LawWorks connects people to free legal advice. FRU (Free Representation Unit) provides free legal representation in social security and employment hearings.
Law clinics
Many law schools offer free legal advice through a law clinic. Clinics vary in the service they offer- some replicate a law firm by offering a full legal service under the supervision of qualified practitioners, whilst others provide initial advice and signposting to other legal services. Some clinics may cover a number of different areas of law while others will specialise in one or two areas, for example social welfare or employment law. Law schools can register their clinic with LawWorks or details of the clinic can be found on the law school website.
Crowdfunding
CrowdJustice is a funding platform that provides an opportunity to build a community to raise funds to support a legal case. The People’s Challenge to the Government regarding Brexit raised £170,550 and Joint Enterprise: Not Guilty by Association (JENGbA) raised over £10,000 to allow them to successfully intervene in the Supreme Court case of R v Jogee [2016] UKSC.
Advice agencies
Advice agencies offer a wide range of support to those who cannot afford or eligible for free legal representation. Citizens Advice provides advice and guidance on a host of legal problems. Advice is provided online, by telephone or in a person at a local Citizens Advice. Law Centres work in local communities offering legal advice, casework and representation. The Disability Law Service provides free legal advice and representation to people with disabilities. The Personal Support Unit (PSU) supports people representing themselves through the court process. Advicenow is a public facing website that provides advice guides on a range of legal topics to increase awareness of legal rights and responsibilities.
So, although instructing a lawyer can be expensive, there are alternatives to paying the top hourly rates. It is important for consumers to shop around and negotiate the best rate and it is still possible to access legal advice at little or no cost.
What do you think are the best qualities found in a leading legal professional? Honesty, commitment, tenacity? Below Lawyer Monthly has put together several short responses to this question from highly esteemed thought leaders and legal professionals, who each have a different view of what character traits their clients expect above all.
As part of Lawyer Monthly’s new series on law school, recruitment and careers in the legal sector, Jo Mercer, HR Manager at Your Legal Friend, describes what you can expect from flexible working and how the request process works.
Achieving greater work-life balance is now considered to be top of the agenda for many employees and employers.
Its rise is down to the influx of talented millennials entering the workplace, a greater awareness of mental health and wellbeing issues and the need to better cater for working parents or other demographics. It’s also due to the realisation that keeping staff happy boosts productivity and supports retention.
Despite flexible working being enshrined in law for over 20 years (under section 80F of the Employment Rights Act in 1996), it is only recently that it has become less of a ‘nice to have’ and more deeply engrained in the legal sector.
It’s described by the UK government as ‘a way of working that suits an employee’s needs, e.g. having flexible start and finish times, or working from home’ but there’s a lot more to a request than meets the eye and it must suit both you and your employer.
At Your Legal Friend we operate a flexible working scheme where every member of staff can work hours that both suit them and the needs of the business as long as they work their contracted hours between the hours of 7am and 7pm.
It’s an attractive option, as is the ability to request a set flexible working pattern which is a huge help to around 30% of our 250-staff operating on this type of contract. Many have requested this to support academic studies, their childcare needs or to care for relatives who are elderly or that have a long-term health condition.
The policy is extended to all staff and can be on either a temporary or permanent basis to suit all parties. All working patterns are reviewed annually to ensure that this is still viable for the employee and the business and to ensure that the original reason for the request is still in place.
It’s worth bearing in mind that if you’re a trainee or newly qualified solicitor, your employer will want to nurture you and offer close support in order for you to progress as quickly as possible.
This means that you may find that you are less likely to be granted a request to work from say 7.00am until 2.00pm as you will miss out on key developmental support from senior members of staff. As you progress and become more independent, this may change.
Some flexible working agreements are negotiated at interview stage. Senior and well-regarded solicitors within the industry or department heads can use this as a bartering tool alongside salary requirements.
No matter what your position, if your personal circumstances change whilst you’re in employment then you can typically obtain a ‘right to request’ form from your line manager or your HR representative.
You must have been at the organisation for 26 weeks and you mustn’t have submitted one in the previous twelve months. These forms are likely to ask you for the following details:
It’s vital to provide as much information as possible, particularly demonstrating that you have thought about potential risks and offered sensible ways of mitigating them.
This may be followed by a meeting to discuss the request between you, HR and your line manager with the outcome determined and discussed at a later date. Bear in mind that by law your employer can take up to three months to consider this, so it may not necessarily be a quick turnaround.
Ultimately the firm is duty bound to ensure your request does not have a detrimental impact on colleagues or the organisation.
Sometimes you must be prepared to give and take. You may arrive at a solution that is not the same as what you’d originally had in mind. For example, you may be able to work a day or two with reduced hours, so long as the hours are balanced out over the rest of the working week.
It’s important to remember that, if the flexible working you have requested is not feasible, then all is not lost and agile working could be implemented if the IT infrastructure supports this and service delivery can be maintained. This option allows employees to work offsite and at home which negates the commute to work and frees up additional time.
It’s best that you keep an open mind about flexible working. Your circumstances will change over time and the most important thing is to have a clear view of what will enable you to achieve your work life balance goals without impacting on your career.
As part of our law school & careers content, Charles R. Toy, Associate Dean of Career and Professional Development, Western Michigan University-Cooley Law School, here lists 5 top tips for job hunting, whether you’re a student who has just qualified, or a lawyer looking to take the leap to another line of work or firm.
There is more than one trail to the top of a mountain. The same is true of your job search. Regardless of the number of ways to achieve a goal, there are consistent keys to success. For law students, these are the five principle keys for job hunting.
Know Thyself. It is important to set defined career goals. A job hunt is meaningless without a known target – how will you know where to aim? First, do a self-assessment that includes reflective soul-searching. What are your interests, principles, ethics, preferred employment settings, financial requirements, geographical constraints, and work/life balance requisites? Next, identify which of your unique characteristics and attributes influence what you are passionate about – what areas of law are compatible to those traits - where will you thrive? Assess your personality traits to identify the type of work place culture that brings out the best in you and fosters your passion for the law. These considerations will lead you to your career goals.
Be Purposeful. With defined career goals, you can focus your job search. Direct your energies to purposeful actions that will result in achieving your goal. You learned research methods in law school. You can use those skills for your own benefit and find employers who hire for the positions you are seeking. If you are still in law school, the results of this research may indicate what co-curricular activities or elective courses you should pursue. Continually update all your marketing tools – resume, cover letter, writing samples, and social media accounts. Make sure they highlight the skills needed for the positions you seek. Always tailor your application materials and LinkedIn profile to emphasize skills and attributes that are important for the job you seek. Enroll in e-mail job alerts so you know the moment when opportunities are posted in your desired field. USAJOBS.gov and the ABA Legal Career Central are examples of sites that will notify you by email of new job postings that match your search preferences. Cast a wide net, but do so purposefully.
Seek Help. Your law school career services office is a great place to start in seeking assistance. Use the knowledge, resources and contacts that career counselors have gained through years of experience. Tap their networks. A systematic and strategic networking plan works. Expand your own network by asking your contacts to introduce you to attorneys in their network. Be specific and direct in approaching people for help. If you do not have a contact within your desired practice area or within a particular law firm, seek out an informational interview. The object is to meet attorneys who can provide current insight to their practice area, tell you about a job lead, or introduce you to someone who can.
Remain Flexible. Do not limit your job hunt only to the direct paths to your ultimate target. Indirect pipelines can also lead you to your career goal. Apply for positions where you will acquire significant t skills transferable to your ultimate career goal. For example, a judicial law clerk position is a great choice useful for any career path. Or, consider volunteering with a legal aid clinic where you can sharpen your inter-personal skills. Your resume and online presence are not static. Your legal experiences in law school should not be either. If you tailor your job hunt to opportunities that expose you to basic foundational skills – legal research, drafting pleadings, preparing transactional documents – you will end up with a competitive skill set.
Be Persistent. “Never, never, never give up” is one of Winston Churchill’s famous quotes. Another is, “Never give up on something that you can’t go a day without thinking about.” Continuous effort pays off. This is where you can be original and creative in your approach. Be engaged in activities that demonstrate you want a desired job. Being active in an ABA or state bar subject-matter section is essential. You will meet attorneys in your desired field of practice and keep updated on trends and cases. Contribute an article to the section publication or create informative and positive content on a section listserve. Drafting a timely analysis of new legislation or court decisions in your practice area will highlight your legal acumen and will help those who you seek to hire to find you right away. Sweat equity will get you noticed.
As part of our features aimed at law students and newly graduates, those looking for work in the legal sphere, and those simply interested in the colours of the law world, whether you’re part of a firm or looking to join a new one, litigation may not be all that familiar. Here Andrea Hall, Founder and Principle of US based The Hall Law Office, LLC, talks to Lawyer Monthly about the ins and outs of litigation form her own experience.
Litigation for me is why I became a lawyer. I remember as a child my teachers telling my mother I talked to much and that I liked to argue. Well maybe at 9 or 10 that was NOT the best trait however it has served me very well in my adult life. Not everyone likes or is cut out for this type of lawyering. What is your personality type and do you like to be in front of people or do you want to sit at a desk and argue your points on paper? You should decide that quickly in your career it makes life much easier and your client much happier. This type of work can be very demanding yet for me the kill was the best part.
The best part about litigation is figuring out the who did it and outwitting, playing and smarting the other side. The top 5 things you should know before embarking on litigation.
Know the Rules. The rules of evidence, rules of either criminal procedure or civil procedure and local court rules. You can win on issues that arise during hearings or trials before the court if you know the little ins and outs of the rules. The rules always have case law attached so you can find cases that help support your position. Study them in your down time and refresh your memory before any appearance before the court.
Know your jurisdiction and your opponent. If you are appearing in a jurisdiction or before a judge or attorney you don’t know talk to people in the area that you trust to find out what types of things they do. Is this Judge fair. Do they tend to side with one side more than the other? Does this lawyer play fairly or do they cheat? Is this lawyer someone trustworthy or do you need to have everything in writing. Again, just make sure you know who and what you are dealing with. You don’t want to be caught off guard. This will make you unsure and make your client feel like you don’t have the situation under control.
Know your case better than the other side. You not only need to know your side of the case you need to be prepared for the other side. Anticipate what the other side might argue. In criminal cases, the State is not used to cross examining witnesses because the defense usually doesn’t have a lot of witnesses to call. So, it is easy to prep your witnesses and anticipate where they might be going. In civil matters lawyers are more accustomed to having witnesses on both sides and therefore more adequately prepared for both direct and cross.
Have a good theme or theory. This will make or break your case. You want to be the best story teller in the courtroom. You want the jury to be able to fall in love or at least have compassion for your client. You want the jury to follow your story! Once you pick a theme and theory follow that throughout your case. The direct, cross-examination, witnesses, opening, closing and voir dire should all follow suit so that the information presented to the jury or judge follows that theme and theory. The presentation needs to worthy of an Academy Award.
Listen so that you can use their case against them. You know the rules, you know your opponent and you know your case. Now you get to listen to what is really being said in the court room. Listen for the golden nuggets that opposing counsel or the witnesses present and say. Use those words against them later in your opening, closing or cross- examination. If you are busy looking through your notes or transcripts when things are going in trial you may miss the “golden ticket”. Stay focused on what is being said and you just might hear the winning lottery ticket numbers.
Being a litigator takes time and practice. Don’t be too hard on yourself as practice makes perfect. Johnny Cochran didn’t come up with “if it doesn’t fit you must acquit” the first time he went to trial. It takes years of practice to perfect the practice of litigation. With hard work, dedication and determination anything is possible. Go gettem tiger!
You may have just started your new law job at a criminal law firm, or made the long-awaited transfer to the career path of your dreams, in criminal defence. Your first case is coming up and you need some expert advice. Robert Conway, Director, Criminal Defence lawyer at Vardags has a mass of experience and below talks Lawyer Monthly through 5 major considerations to make before jumping into your first criminal law case.
My first criminal case was held in a courtroom that no longer exists. The judge who oversaw that case has also long since retired, and I can barely recall the issues in the case, although I do remember my client receiving a stern warning from the judge that if he didn’t stop talking he would be sent to the cells. I’m not sure what I could have done to prevent that, especially since I had repeatedly warned my client to keep quiet. When it comes to criminal trials the first lesson is, therefore, to expect the unexpected and accept the fact that unforeseen issues are bound to arise.
I also vividly remember my closing speech. Not the content so much as the way in which it was received. In my eagerness to include every possible argument, I ended up flailing without landing one single punch.
To some extent, advocacy is a skill that comes with practice, and, in fairness to me, this was my first trial. Looking back, the real reason why I failed to grab the judge’s attention at this crucial moment was because I lacked clarity, not just in terms of my delivery but in my preparation overall. This may sound a trite piece of advice, but success in a criminal trial is not so much to do with rhetorical flair or Hollywood style revelations, than well-focussed, thorough and detailed preparation. Whilst I may lack much in the way of Perry Mason style anecdotes, I can at least share my own experience and provide some tips to assist in your own preparation.
The temptation on being handed your first case is to dive straight into the evidence to find out what the main complainant says or perhaps what the crucial piece of CCTV footage reveals. In your eagerness to do this, there is a danger you might overlook the charge sheet. It is this vital document that sets out the offence that your client has allegedly committed. In considering the offence and the statutory provision set out in the charge, you train your mind on the elements in the case that the crown has to prove from the outset. This is the central organising principle which will steer the whole course of your preparation.
When you have understood what it is the crown has to prove, you can go on to critically assess the strengths and weaknesses of every single item of evidence. You can identify the main problem areas for your client in the case, and also whether there are any potential gaps in the evidence or at least weaknesses that can be exploited. The charge sheet, and, in particular, the information underpinning it, becomes your compass. Taking the time to consider this at the start of your preparation can mean the difference between confusion and landing some well-placed punches.
I can’t emphasise how important it is to read through the entirety of the case papers thoroughly at an early stage of your preparation. I read through the papers from beginning to end at least twice before I so much as pick up a pen. Once you do this you are invested in the case and from this moment onwards, whether you like it or not, a part of your brain will stubbornly continue to process the evidence, analyse the case and commence an engagement with it which will last until the conclusion of the trial itself. (If you hadn’t worked it out already I’m sure you are now beginning to appreciate that this is hardly a 9-5 sort of job).
Some of my best preparation is done away from my desk. I might be getting on with other things entirely when aspects of the case may jump out at me. It is important to allow time to simply think through the case be it considering the credibility of a particular witness, rehearsing lines of cross examination or perhaps even polishing off arguments for a speech. In order to start the process of thinking through a case you need to first embark on a patient and thorough reading and re-reading of the papers.
When you’re given your first case, rather than finding yourself one of a large team of defence, you may well find yourself pretty much on your own . You will soon learn that your true allies in this work are really your highlighter markers, post-it notes and any other stationary which can in some way help you organise and navigate your way around the papers. You should also form the good habit early on of compiling chronologies and lists of the important witnesses (dramatis personae) and any other device which can help you remain on top of the detail. This may seem unnecessary in a small one witness case but as you progress and take on more complex cases the task of staying afloat of the detail becomes all the more challenging and so ensure you start as you mean to go on.
Organisation is vital for two reasons; first to ensure you maintain an air of professionalism in court. It is through a professional demeanour that you can be most persuasive and being organised is key. There is no better way to get off to a good start than to be the one person in court who knows where a certain part of the evidence is located and provide some timely assistance to the judge in directing him to a particular page especially when in doing so it means you start scoring points against the other side. The second reason is that during the fast moving and high pressured criminal trial you simply don’t have the time to spend leafing through a dense heap of papers. You need to have the information at your finger tips or otherwise your timing and delivery goes out the window and you lose the point and perhaps the tribunal with it.
Once I’ve read through the papers, armed myself with post-its and prepared my chronology, I then start drafting my closing speech. Even though the speech is the very last act of the proceedings, the exercise of drafting the speech at the outset helps you focus on the arguments you would ideally hope to make on behalf of your client if all goes to plan at trial. It helps to identify the strengths and weaknesses of the case and the main objectives in the handling of each witness. You begin to think about how best to bolster the good points and exploit the weaknesses and at the same time how to soften the impact of the more problematic areas of the evidence. With these objectives in mind you can begin to start formulating your cross examination and indeed prepare the examination of your own client in his evidence in chief. In this way, your closing speech becomes your main battle plan, a blue print for how you would like to see the trial conducted.
In America, the defendant will sit next to his lawyer in the courtroom and will be in a far better position to discuss the case with his legal representation as the proceedings are ongoing. In the UK, the situation is quite different. Through tradition and custom, rather than any specific law, the defendant will remain in the dock, usually located at the back of court, (a position that has come under challenge in the European Court of Human Rights). This can create an artificial divide between lawyer and client. However, you must always remember it is your client’s case you are fighting and they have to be involved at every step of the way. Make sure you spend time with your client and explain everything in detail both in terms of the case itself and your view of the strengths and weaknesses in the evidence. Ensure you obtain full and clear instructions upon every aspect of the evidence and spend time thinking how you can assist your defendant present his evidence in the clearest and most compelling way in his examination in chief.
Scenarios will always arise at trial that you simply cannot plan for in advance. These unexpected contingencies can be stressful to deal with and require difficult tactical decisions to be taken at short notice. What is crucial, however, is that you don’t forget your client. Make sure you discuss every development with your client and ensure you take clear instructions as the trial progresses. If necessary, do not be afraid to ask the judge for more time in order to do this properly and be firm and resolute in this. Your client may well be facing one of the most difficult and stressful moments of his life. You are the only protection, so rather than leave your client isolated at the back of court, involve them in your preparation and demonstrate by this that you are fighting for them.
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