General Litigation

Like Skiing and Golf, Learning the Law Often Requires Public Humiliation

Every profession has a hazing period – the time where the newly-minted employee, fresh out of school, runs smack into the harsh reality of the real world. For many work places the embarrassment of doing something wrong or falling prey to a prank pulled by an elder colleague is usually confined to a few people in your work group or office cubicle’s neighborhood. Not so for the shiny new litigator. There is almost no courtroom lawyer who doesn’t have at least one horrifying experience of their early days in court. While most can laugh about it now, at the time it seemed like your legal career was over before it started.

The situation reminds me of when I learned to ski. I was still in law school and my girlfriend (now my wife) had rented a ski house for the season and was going to be up in the Catskills every weekend. When she asked me if I knew how to ski, I reminded her that I was A Dominican from the Bronx and that I wasn’t getting on skis unless there was motorboat pulling me across the Caribbean. She basically said “Well, it was nice knowing ya!” So I decided to learn to ski. Those first few outings were nothing but utter humiliation and despair. After taking what seemed to be hours to get all that clothing and equipment on, I would say goodbye to all our buddies while they went off to ski trails with names like Avalanche, Suicide, Wheelchair Pass and I went on to the tow rope line and trails called Happy Land and Easy it Does It. But I persisted through all of it, including having five year olds ask “Are you OK, buddy?” when I wiped out on the beginner trails, to love the sport and excel at it.

Well fast forward a few years later, switch “trails” to “trials” and there I was getting yelled at by judges and courtroom clerks and no one was asking me if I was OK. But I decided to make sure that I limited the number of errors, faux pas and missteps by over-preparing. I had appeared early on in my career before a tough judge in Manhattan and my adversary was relatively inexperienced as well and both us fumbled blindly through the court appearance. The judge said, “its nice to see that both of you have avoided the pitfalls of over-preparation.” I took that to be a gauntlet thrown. I read, re-read and re-re-read, the papers for the motion I was arguing or the EBT transcripts for the trial I was going to start. I picked up Mauet’s Fundamentals of Trial Practice and Richardson’s Evidence and literally never left home without them, going over each section again and again keeping them by my bedside and reading until I dropped off asleep. Before I appeared in a courtroom for the first time, I made sure to observe the part at work at least once before my appearance so I could learn where to stand, what to say and the judge’s demeanor. Knowing minor details like that was half the battle to being more comfortable in the lawyer’s well when my case got called. But most importantly, when a senior person gave me an assignment, I asked questions relentlessly making sure I understood exactly what was expected and what the key points were. I asked what the whole case was about, not just focusing on the minor point that was at issue that day, so I had a better understanding. I had learned, after a few failures that left me standing before the bench like a well-dressed Ralph Kramden going “Hummena Hummena Hummena” that the judge may very well stray away from the topic of the motion to ask about the details of the case in general. So I did not care that I might look inexperienced -I WAS inexperienced – I just wanted to reduce the possibility of surprises and gaffes. Believe me it is better to have them think you are a little slow on the uptake than to have to come back from court to explain you got demolished because you didn’t have all the necessary information. Over-preparing is the key to success for the young advocate.

Many years later, comfortable now in the courtroom and on the slopes, like a fool, I decide that taking up golf in my 40s would be a good idea. Everyone was saying to me “You’re a lawyer in private practice on Long Island, you have to golf.” I didn’t even utter my “Dominican from the Bronx” refrain since it didn’t work so well the last time. Instead, I just took my own advice and prepared, prepared and prepared. Before my first golf outing, I went to the driving range and took some lessons. Picked up a book on Beginner Golf and read it cover to cover. I enlisted my trusted brother in law Andy to take me out on the links, just the two of us. I knew he would get a good laugh at my expense, but I also knew that what happened on the golf course would stay on the golf course. This way when I went out for my first outing, I still stank it up, but it wasn’t quite as bad as it could have been. The other thing I took from my skiing and court room experience was that once people learned a skill, THEY FORGET THEY WERE EVER BEGINNERS and have no patience for newbies. So whenever anyone in my foursome had a comment, I knew I could get them back by asking them to tell me a story from when they were first learning golf. It tended to bring them back down to earth pretty quickly. I also had the confidence of knowing that despite their remarks, they knew that they were in my shoes not long ago.

Noone is born knowing how to ski or golf – they are both activities that defy reason, common sense and gravity. As is the practice of law sometimes. So for young lawyers out there, I have one more piece of advice – relax. This too shall pass. You will learn your craft in time and if you take the steps to prepare along the way, you will come out of it with some war stories and a few scars, but none the worse for wear and tear. And after you become a seasoned and wizened professional, when you see a new attorney struggling or getting chewed out over a procedural mistake, don’t forget where you started. Go over to the wounded warrior and ask “Are you OK, buddy?”

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