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Since courtrooms don’t allow cameras, it’s hard to be able to study great litigation first hand without being able to physically go to a courtroom where a Beth Wilkinson or Teddy Wells may be arguing for example. What are some great resources to learn more about becoming good at litigation and maybe some tips that others have picked up along the way.

I think a lot of it is simply doing it, but to the extent that books help, Mauet and Imwinkelried are excellent. (Mauet is on trial generally, Imwinkelried is in evidentiary foundations, but imho thinking like a litigator means thinking about how you can get evidence admitted. Obviously there’s more to it but that’s a huge part and not as intuitive as the story telling/persuasive part.)

Also then it’s hugely preparation. Know your evidence/exhibits, prep the hell out of your witnesses, know the case inside and out. Magic public speaking persuasion skills and charisma are great, but they don’t make up for preparation.

(I am absolutely not a great litigator, but just my 2 cents from working with good ones.)

I have lots to say on this because a million years ago I was like you, and thought I'd be a trial lawyer, so I spent a lot of time thinking about it. I'm now old and am not a trial lawyer. But here are my thoughts:

(1) It's really all about reps. Can you get a job as a DA? Or a PD? If you're at a firm, will your firm allow you to take a leave of absence to do a secondment at a DA's office or a PD's office (a good number of firms allow this for 1-3 month terms; I believe Williams & Connolly allows it for like 6 months)?

(2) Will your employer pay for you to go to the National Trial Advocacy College at UVA? I went and there were tons of big firm lawyers there, and tons of government lawyers there.

(3) Can you do pro bono that will get you into court? CAVEAT: I did lots of pro bono that was supposed to get me into court but it didn't at all, and instead I just worked on finalizing settlement agreements between insane people. I also did a ton that got me to the day of jury selection and then my client took a deal, and in the end I did basically the same things I did in all my other cases. Also, many pro bono clients can be trouble; they're litigious and often no paid lawyer will touch them - sometimes that's just economics but sometimes it's because the client is going to be a huge pain for you, or will turn on you if you don't tell them what they want to hear. This isn't meant to bag on pro bono. I had some great pro bono clients. But you need to be very selective on the matters you will take.

(4) If you're still in law school, can you get on the trial team? If you're out of law school, can you go back and teach the local high school/college/law school's trial team?

(5) In general, think about the matters you take with an eye for what type of practice you want to build. It's hard to turn down work and easy to say yes, but if that means you'll spend the next year in the weeds reviewing bank documents and summarizing them, then you won't be spending that time building the career you want. After 10 years like that, it will take a hard reset to get back on path. So be strategic early on so that you can honestly be too busy when the guy with a stack of bank documents to summarize walks in your office.

(6) Identify the best trial lawyer in your city and go watch him or her. When I was in DC, I heard Dane Butswinkas was great. So I found local cases he was on and I tried to make the hearings.

(7) If you're in court, stay and watch other people argue. Something they say might impress you. Something the judge says might stick with you. Maybe you'll see something you can borrow.

(8) Think about clerking for the same reasons stated in 7, and also because trial lawyers will want to talk to you because they know you're one of the people that will potentially help decide their cases. It's a potential in to learn trial tactics.

(9) Join Inn of Court to get to know trial lawyers and judges and to see presentations on legal topics.

(10) Why do you want to be a trial lawyer? For me, the dream fell apart when I had a family I needed to support, and realized that my employer didn't really care for a trial lawyer, but instead someone the firm could sell to clients as an expert at X. I realized that clients mostly don't hire trial lawyers, but instead subject matter experts. I realized I probably wasn't going to be the one in a million lawyer that gets hired because he's a great trial lawyer. So I've shifted to building expertise on X.

Oyez posts SCOTUS arguments online in audio form. It may be useful to listen in to see how they frame arguments in front of the Justices. SCOTUS bar is comprised of top-notch litigators. Granted, it's not oral arguments at trial but on appeals and the presentation of arguments is still fairly similar.

Jchance wrote: ↑

Mon Jun 28, 2021 1:38 pm

Oyez posts SCOTUS arguments online in audio form. It may be useful to listen in to see how they frame arguments in front of the Justices. SCOTUS bar is comprised of top-notch litigators. Granted, it's not oral arguments at trial but on appeals and the presentation of arguments is still fairly similar.

I would love something like this for very high-level jury presentations: opening, closing, witness examinations (especially crosses) in jury trials. I agree with the other comments that the best ways to get better are to get reps and watch really good lawyers getting reps.

12YrsAnAssociate wrote: ↑

Mon Jun 28, 2021 1:27 pm

(1) It's really all about reps. Can you get a job as a DA? Or a PD? If you're at a firm, will your firm allow you to take a leave of absence to do a secondment at a DA's office or a PD's office (a good number of firms allow this for 1-3 month terms; I believe Williams & Connolly allows it for like 6 months)?

This post is great, just wanted to expand on one point. It's true that there's no substitute for standing up in court. At the same time, though, part of what makes good trial lawyers is that at every stage of the process, starting with the answer, they're thinking about how decisions will affect the trial. Always be thinking about how what you're doing will play to a jury. When thinking about witnesses, whether prepping your own or taking depositions, think about what you need at a trial. People will notice.

k_moreno wrote: ↑

Tue Jun 29, 2021 9:08 am

12YrsAnAssociate wrote: ↑

Mon Jun 28, 2021 1:27 pm

(1) It's really all about reps. Can you get a job as a DA? Or a PD? If you're at a firm, will your firm allow you to take a leave of absence to do a secondment at a DA's office or a PD's office (a good number of firms allow this for 1-3 month terms; I believe Williams & Connolly allows it for like 6 months)?

This post is great, just wanted to expand on one point. It's true that there's no substitute for standing up in court. At the same time, though, part of what makes good trial lawyers is that at every stage of the process, starting with the answer, they're thinking about how decisions will affect the trial. Always be thinking about how what you're doing will play to a jury. When thinking about witnesses, whether prepping your own or taking depositions, think about what you need at a trial. People will notice.

On the civil side, I actually think that depositions can be a great way to get reps. I tried my first case having only taken like 3 deps. My direct exams and crosses weren't great. By the next trial, I had 20 deps under my belt and it felt soo much easier.

Use the deps to practice your trial skills. Practice open and leading questions. Try to drill down on a point with a witness. Pretend you're doing it in front of a jury. Most lawyers just lazily ask a questions have to do with their outline.

Then, when you get to trial, all you have to learn is how to give two speeches and the evidentiary stuff.

Anonymous User wrote: ↑

Mon Jun 28, 2021 7:13 pm

Jchance wrote: ↑

Mon Jun 28, 2021 1:38 pm

Oyez posts SCOTUS arguments online in audio form. It may be useful to listen in to see how they frame arguments in front of the Justices. SCOTUS bar is comprised of top-notch litigators. Granted, it's not oral arguments at trial but on appeals and the presentation of arguments is still fairly similar.

I would love something like this for very high-level jury presentations: opening, closing, witness examinations (especially crosses) in jury trials. I agree with the other comments that the best ways to get better are to get reps and watch really good lawyers getting reps.

I forgot to mention this before, but I had the same thought several years ago and I found a number of things like this that are available - although none as good as Oyez.

(1) The whole OJ Simpson trial is on youtube. I had my firm IT folks download a youtube to MP3 converter on my work laptop, and I put it on my iphone via itunes.

(2) I found a Chicago police excessive force trial that was also streamed on some news website (maybe NPR?).

(3) Courtroom View Network has lots of trials they stream, but it's a pretty expensive paid service, so I never did it.

(4) There's a federal judge in Nebraska (Richard Kopf) that puts audio of his trials and other proceedings on pacer.

(5) Several judges in the Northern District of California stream their proceedings under the district's "Audio Streaming Pilot." It looks like several other courts do too: https://www.uscourts.gov/about-federal- ... ming-pilot.

(6) Not trial, but several federal courts of appeal also stream their proceedings.

(7) Last time I looked was like 3 years ago, so maybe there is more now.

12YrsAnAssociate wrote: ↑

Mon Jun 28, 2021 1:27 pm

(1) It's really all about reps. Can you get a job as a DA? Or a PD? If you're at a firm, will your firm allow you to take a leave of absence to do a secondment at a DA's office or a PD's office (a good number of firms allow this for 1-3 month terms; I believe Williams & Connolly allows it for like 6 months)?

A former professor who did some cutting edge international work for the DOJ before going into teaching once told me: "Great litigators aren't made in firms, you just don't get the reps."

8 years into private practice, I think she's right. Certainly working at big Vault-ranked firms is not going to get you into a courtroom nearly often enough to develop trial skills.

When I hear the word 'litigator' I don't think about stand-up experience in courtrooms, I think about brief writing and interacting with opposing counsel outside and witnesses and such.

IMO standing up and having a nice haircut isn't what wins cases. Building great relationships with the client and in-house counsel so that you can find and learn from the right witnesses, and then writing a compelling but easy to understand brief/motion based on deep research, imo, is what makes for a good litigator.

I guess it depends on your practice area. I work on business and commercial cases. I suppose in the criminal bar it's all about how good your haircut looks and how confidently you speak to a judge -- but in civil litigation, at least, I think it's all about being smart, diligent, kind, and relatable. And good at dealing with people on your own team or the other side who aren't those things.

johndhi wrote: ↑

Tue Jun 29, 2021 7:56 pm

I suppose in the criminal bar it's all about how good your haircut looks and how confidently you speak to a judge

I mean, no, there is more to criminal law than this.

Anyway, I think you're talking about litigation and a lot of us in this thread are really talking about being a trial lawyer.

joeshmo39 wrote: ↑

Tue Jun 29, 2021 6:57 pm

12YrsAnAssociate wrote: ↑

Mon Jun 28, 2021 1:27 pm

(1) It's really all about reps. Can you get a job as a DA? Or a PD? If you're at a firm, will your firm allow you to take a leave of absence to do a secondment at a DA's office or a PD's office (a good number of firms allow this for 1-3 month terms; I believe Williams & Connolly allows it for like 6 months)?

A former professor who did some cutting edge international work for the DOJ before going into teaching once told me: "Great litigators aren't made in firms, you just don't get the reps."

8 years into private practice, I think she's right. Certainly working at big Vault-ranked firms is not going to get you into a courtroom nearly often enough to develop trial skills.

I think a very underrated litigator path is (noting that this is all way easier said than done, but if you have intellect drive and plan it out it’s viable) to: get massive merit scholarship at t20 or so, crush it there, summer at firm and maybe even do a 1-2 years in biglaw if you feel you need to for $ purposes, go be an Ada in a major metro area for 2-3 years and start pushing for fedclerk or even SSC clerkships like 6 months in, get one, apply/network like mad from there to biglaw with more trial/motion/state appellate reps under your belt than even the managing partners, volunteer to take class hit for Ada years in order to maximize partnership runway.

After all, some form of the above is what Harvey Spector did…albeit without the t20 part and without the clerkship part.