Chapter 17

• Jurisdiction: United States

Chapter 17 In Praise of Trial Lawyers

You need to be trial lawyers. A litigator drinks wine and takes depositions. A trial lawyer drinks whiskey and tries cases.

—Hon. Cheryle Gering, presiding judge of the First Judicial Circuit of South Dakota¹

My father, Myron Blumberg, was a trial lawyer. He almost never came home early. When he prepared for trial, he would pore through notebooks, files, and boxes, and, during trial, would work long into the night. The practice of law was not just a way to earn a living and support a family; it became an inseparable part of him. He tried all manner of cases: personal injury, medical malpractice, fraud, real estate, contracts, business, will contests. He earned a reputation as a fierce advocate and courtroom strategist. In the 1960s, racial discrimination in housing plagued the community. He filed and prosecuted lawsuits against those who refused to rent to blacks. He became the bane of biased landlords who slowly began to change their ways under threat of monetary penalties assessed by juries. When asked whether lawsuits were the way to change people's hearts, he responded that he didn't care whether the change in people's behavior was driven by fear or an actual realization of the harm their discrimination had been causing. But, in what he described as "a strange twist of mind," he said that, under threat of a lawsuit, once people begin acting in a fair and just way, many convinced themselves that "doing the right thing" was always their intent. And slowly, housing discrimination became less of a problem in his city. For my father, justice was a passion.

His skill at cross-examination, which served him well in the courtroom, also made it difficult for his children to concoct an excuse that would withstand scrutiny. Often, the discussions around our dinner table were stories of frauds being uncovered, doctors injuring patients, negligent drivers causing injury, and civil rights being enforced.

I became a lawyer in 1976 and went into practice with my father. As a young lawyer, sitting across from my father's desk, I used to wonder how I could remember everything he was telling me. On trial preparation: "If you can't pick up the other lawyer's briefcase and try his case, you're not ready to try yours." On professionalism: "You can wrestle with a pig in the mud, and you'll both get dirty, but only the pig will like it." I wanted to be a trial lawyer, but there was so much to learn. So I joined local, state, and national trial lawyer associations; I subscribed to trial advocacy journals; I went to nearly every trial advocacy seminar that was offered.

But when it came time for my first jury trial, I felt less than adequate and asked my father to sit first chair, which he did. But the next time around, I was ready (or so I thought). It was then that my father gave me the advice that has driven me and haunted me to this day: "You must approach every case as winnable. Sometimes a loss means that you didn't find the thing that would have made the difference."

Everyone knows about those "things." A piece of evidence, a turn of phrase, the magic question, the piercing voir dire that unearths the hidden poison, the cross-examination that uncloaks a deceitful witness, the eloquent final argument, the critical jury instruction. I have come to think of it this way: It's like a needle in a haystack. Just because you couldn't find it doesn't mean it wasn't there.

This mantra can drive you to obsession, and it can crush you if you lose. It is the client's case, but as trial lawyers, we accept the accolades for triumphs and the sorrow for losses. One key to emotional survival is...