Surviving and Thriving: Tips for Young Lawyers

Bethany Nikitenko:   0:04
Hello and welcome to the Feldman Shepherd Young lawyers, our with J. P. And Bethany. I'm Bethany. Nicotine. Go

spk_1:   0:10
on. I'm j p found us.

spk_0:   0:12
This podcast covers are true stories and experiences as young lawyers and offers advice, tips and strategies that we hope will help you embark upon this exciting time in your career.

spk_1:   0:22
Thank you guys so much for joining us today. We're really excited. What's up, everybody? We are really excited today to discuss some very important topics with you, including the hurdles you will encounter as a young litigator and the mistakes you are inevitably going to make it how to bounce back from them.

spk_2:   0:38
Thank you for joining us, guys. So, um, let's talk about

spk_0:   0:42
your top five, um, techniques when writing breathes.

spk_1:   0:48
Yeah. Um, great questions. Something that all young lawyers confront. Um, setting aside for a second sort of cracks act structure that everyone learned in law school and the, um, obvious advice of shepherd izing your law. You never want to be the person who cites ad or overturned law. Um, I like to begin the process with a pretty in depth outline of what I'm trying to accomplish. Um, I Usually it's Ah, it's ah bear nuts and bolts type outline with the sort of three strongest points that I'm trying to make. And then those points air supported by what will ultimately become the first sentence of each paragraph throughout the brief. Bethany, what you think about that?

spk_0:   1:32
I think that's a good idea. I think you know my number one rule or tip. For any young lawyer, starting off with a brief is first, don't be intimidated. Don't be overwhelmed because you could be confronted with a large document. Um, and you've never seen anything like that before and you could get scared, so my suggestion would be Break it down. Um, a lot of times, unfortunately, we're dealing with a lot of repetition, so the brief might be very large, but it could be repetitive. So look at the items, break it down, and then I completely agree with you in terms of having an outline and knowing where you're going. I think a lot of attorneys overlook issues in terms of style. You should write a brief just like you write any other piece of writing. You should have an introductory paragraph. You should have a conclusion paragraph There should be natural flow throughout your brief. So I think, you know, for me, the two main points will be Don't get overwhelmed and break it down. And to pay attention to your writing in your writing style.

spk_1:   2:28
Yeah, that makes a lot of sense in terms of the structure, I guess different law schools do different acronyms for this, but a temple law. I'm a proud temple. All of this, we, uh we used cracks at conclusion rule, explanation application, and then reassert your conclusion. That's always worked well for me. I think it really highlights what you were trying to accomplish. In a brief. It is a judge, and the judge is staff time sort of digesting your points, um, and tow Bethany's point about not being overwhelmed by the size of either the brief you're responding to or the amount of material that you're working with. The outline can really help you stay concise and less is more. As with all trial practice. Well, with a couple of exceptions that we'll talk about unless it is often mawr in in the adversarial context. And I find that that is absolutely true, at least for affirmative briefs. Not responsible but affirmative. Bruce, that I'm filing in support of motions in limine A We almost on the point of cider. Never finally, motions for summary judgment. Certainly not in my practice. I don't know about Bethany's. She's a hard worker and a lot smarter than me, so I'm sure that she doesn't. Nothing. How many motions for summary judgment? Have you filed last year

spk_0:   3:38
In the last year in my whole career for two or three.

spk_1:   3:40
Okay, that's two or three more than May. So congratulations. Thank you. Um,

spk_2:   3:44
what does have to

spk_1:   3:45
do with those dis positive issues we're talking about here?

spk_2:   3:47
There really

spk_0:   3:48
weren't dis positive issues. I think sometimes is the plaintiff. If you want the defendants to show their cards before trial and you know you're going to trial, you should think about filing a motion for summary judgment because they're going to be forced to show their cards and tell you everything that they're gonna put on the table a trial. So really one of them was only a dis positive motion at which we we won on liability and the other two were medical malpractice cases where we were never gonna win. But we wanted to know what the defendant's best arguments were, and they had to show us those arguments in responding to those motions.

spk_1:   4:20
There you go. Bethany is over here. Playing chess on playing checkers is getting you to show your cards. Um, so yeah, that that's ah, outlining is definitely important. Another thing that I would focus on in a common error that is very, very easy to correct. That I see a lot from particularly high volume shops is just

spk_2:   4:35
a

spk_1:   4:35
failure toe print the document and read back over at one time before submitting the amount of times that I am responding to briefs that have easy to correct dramatic uniformity or spelling errors. Um, it's kind of mind boggling, and I think you lose a lot of credibility with the court, particularly in federal court. When you make those mistakes and they're easy to correct. It's just an attention to detail thing, and part of it has to do with time management, building a little bit of time into your into your process tohave. You know, however much time you're gonna need to read back over the entire brief in hard copy. I can't stress that enough to it in hard copy with a red pen and just strike out stuff that you see, It also helps you sort of go back one more time and say, Hey, this is this is a little extraneous or there's a tighter, more concise way to state the same point that I think will be appreciated by the court in the same way without spilling too much on the page.

spk_0:   5:27
So, um, the both of you have mentioned the fact that this process itself, it's overwhelming. So there's a lot of anxiety that comes with it. A lot of overthinking. Um, what would you say is the one thing that you must d'oh in? Um, as you work through this process, there is a lot of Well, you know, it's my writing. Good enough. Um, I actually pointing the right information. Like, you know, there is a lot of overwhelming amount of information tiu work through, um, and actually put all put it all in one piece of paper. So what would be the one thing you must d'oh in creating this documents?

spk_1:   6:09
Yeah. Um, so for my practice, having that kind of depends on your objective. If I'm responding to a motion for summary judgment than obviously, the most important thing I need to accomplish is to develop genuine issues of material fact. And, um, here it Feldman Shepherd, at least in our practice team. One of the ways we like to do that is by contextualizing as many pull quotes or sound bites as we can from the depositions that have been taken and the discovery that's been exchanged. That support sort of our allegation against the defendant that there are substantial issues here that need to be weighed by a jury. And the more that you can crystallize that for the court in the form of specific sound bites pulled directly from the evidence that can be anticipated to be heard at trial, the better off you are. And the more likely you are to have a court agree with you. Oh, I understand Defendant's point here, Um, and obviously they're gonna read that motion first. Um, I understand what the defendant's trying to say here, but contrary to what they're alleging, I see here that a jury could evaluate this evidence in more than one way. One way the defendant is asserting So I think that's really helpful for motions for summary judgment. And then to the extent that what I'm trying to accomplish is, and in lemon emotion that I'm actually filing, I'm a huge fan of just being brief. I don't like to spill a lot of ink. I know the way. I think I know what this point the way that, um, courts are overworked and court staff has a lot to go through, and I think they really appreciate when you just get to the point is quickly as possible, make your point and get out. Anybody thinks

spk_0:   7:43
I think on kind of more Ah, global, um perspective because you've addressed the summary judgment in the motion in limine A. I think when you're responding to emotion, the most important thing is to make sure that you've read the entire brief. You understand your opponent's argument and you familiarize yourself with the case law that they've sighted, that you generally have all the knowledge that you need before you sit down and respond to the motion. Because if you miss a point, if you don't understand what they're saying, then your response is not going to be on point. That's number one. Number two is. You know, in my experience, a lot of law firms recycle briefs, use briefs again. The case law becomes outdated, or the case law that they're citing is really not representative of what they're representing to the court. So it's important that you number one understand their argument, but number to make sure that the case law that they're citing and representing to the court is indeed what it's as. So I think, from, you know, a global perspective in terms of just your basic response, knowledge is the most important,

spk_1:   8:48
so important, so important that, you know, you come into a podcast like this, thinking it's gonna be dry, you know? What are they really gonna talk about in terms of briefing? But that's gold right there. You get in there, you find out that they have misquoted the law or it doesn't stand for what they have asserted. And you're gonna t often hit a home run in your response point

spk_0:   9:05
because they're gonna lose credibility. They're gonna have lost credibility with you. They've lost credibility with the court, and it's, you know, it's a good place to start. Great. So let's move right along and talk a little bit about, you know, preparing an expert witness. Talk to me about tips, tricks. The whole magic. Had whatever you come up with on that room.

spk_1:   9:27
Yeah, Um, so this is for me at least starting out in practice and trial practice. This was the most one of most intimidating parts of my practice. You know, it's hard enough to cross examine an expert witness who has so much more knowledge than you in any given area. But to prep your own witnesses to come across as, um ah, compelling advocate and someone who understands that substance of what you're trying to get an opinion on, um can be really intimidating. So, um, I would sort of break it down into pieces. So, um, when I'm initially consulting with an expert on the case, I like to have full candor. I like to come to an expert and say, Here's what I think this case is about. Here's what I see this strengths of my case to be. But also, I'm worried about this here, the weaknesses, and I think that's really helpful when you begin a relationship with an expert because you don't you know, to some extent, experts are are incentivized to help you support your case. They want to be helpful. Um, and they want to support the case. But you can also, without bringing anything to the table in terms of the potential negatives you run the risk of an expert telling you how strong your cases without preparing you for what will be the challenges. And that could be a a mistake in terms of your initial footing in a case. Do you think Bethany

spk_0:   10:48
in terms of preparation of experts, it's definitely something that's very scary and intimidating, as as a new attorney, because you're meeting with an expert who has large basis of knowledge that you don't have, um, and you're going into a situation that is pretty intense. And I think the first piece of advice I would give us really take a deep breath and realize that this person is the expert. You don't have to be the expert. Your job is to prepare them in a manner that they're going to give a good presentation of their testimony in the information that you want to provide. So in my initial experiences with experts. I was very worried and very nervous. But the expert has all the knowledge. It's just up to you to make sure that they present that knowledge in a way that works for your case. So I think that first you need to become familiar with your expert. Is this someone that has testified a lot in the past, or is this someone that has little experience? If it's someone that's testified a lot in the past, you know, these are the kind of people where you need to meet with them briefly, but, you know, they're just going to roll with it. They're gonna know what to d'oh. It's the experts that don't testify as much. You really need to sit down with them and really go through the nuts and bolts of testimony like they would be your client or any other person and make sure they understand what the rules are, what the tricks are. What's the definition of preponderance of the evidence? What's the definition of a reasonable degree of medical certainty? Because it's not, you know, 51% so make sure they know the buzz words. They know the phrases they know. The things that they're going to get caught up on him, and that's a good place to start.

spk_1:   12:25
Yeah, so it's such a good point because so many experts practice practice, you know, across different venues. So it's really important that you couch everything. If you're practicing in Pennsylvania in terms of a reasonable degree of whatever the expert is testifying about certainty. So a reasonable degree of medical certainty, a reasonable degree of engineering certainty, those kinds of things, um, the expert may not know, Um, I'm big, unlike actual, you know, here's a Here's a trick that I use. I like to say things like this. This is how this is the role that I see you went in this case. This is how I see you supporting the case. These are These are the things that you can help me understand about the challenges with the case or how you can help me prepare for the defense's position and what their experts are going to say. I think that gives its two folded, allows an expert to know that you're in control and that you're competent with respect to the case, while obviously being limited in your own knowledge about the subject matters, particularly in comparison to the expert. She's always gonna know a lot more than you are, and it also kind of gives the expert and opportunity toe come in and be the hero. I mean, most experts would want you to acknowledged that they have this knowledge. You've come to them for a good reason there. Well, credentialed. You certainly have a lot of respect for what they do and what they bring to the table and saying things like that. I envision your role to be. But let me know what you think gives them an opportunity to say, Yeah, I mean, that makes sense. But here's something else I can do for you are Here's something maybe you haven't thought of. Just get him talking. It's It's basically the same types of things you want to do in deposition. You'd love to do with an expert so that you can learn as much about that person as you possibly can. And then there's a there's a little bit of a different. I think things shift gears when you start to talk about reports. Um, and I'm sure Bethany can talk a little bit about what she likes to do with experts when she's talking them through the report process and potentially getting getting prepped for trial. You think about that.

spk_0:   14:11
Let me let me just go back for one second as the young attorney going into the deposition, Um, you want to make sure you're aware of any land mines that exist with this expert. So before you go into the deposition, you want to research on the various research platforms where they've testified before. Ask the experts where they've testified before. Um, what depositions have they given? A lot of them know they can tell you off the bat. By the way, they're gonna ask me, X, y and Z. They know why. Charge X amount an hour. They know in this case, I said, You know, I gave this testimony, but it doesn't really apply this case because of this reason. So just make sure you know, as a young lawyer, when you're sitting in a deposition of one of these land mines comes up. It's something that can really distract you, so make sure you talk to the expert and make sure you do your research first, um, with regard to writing the expert report, having the expert do the report. It's always a very tedious and time consuming process because a lot of these experts, especially medical experts, they're not people that are accustom to writing. So it's a process that involves, you know, going back to the expert over and over again, Um, and having conversations in terms off, you know, I need more background information or I need you to focus on X, Y and Z. But as the attorney, you really need to work with the expert to develop something that's very thorough. Um, that covers all your bases, certainly especially in Pennsylvania, because we don't have expert depositions. So you want to be able to work with the expert to make sure that they are putting all of their knowledge that they have with regard to this case into this report. And oftentimes it's a long process. It's not an easy process because we're not dealing with people that are generally writer. So I think my biggest recommendation would be that you need to be patient. You need to understand it's going to take time. You need to be aware of your deadlines you need to lie to the expert and tell you to tell them the deadline's a month before, um, to make sure that you've covered all your bases and you have a working product that's ready to go when it's d'oh. Yeah, not

spk_1:   16:18
even lie, really just sort of Ah, you know, just exaggerating when the deadline is in terms of practical way to accomplish that. Something that I like to do is, um is to write ah, really in depth letter to an expert that I'm going to attach the exhibits and relevant evidence, too. And if that letter looks sort of structure the way that I hope the expert report does, then that's makes the experts life easier, I think. And I also like to point the expert to the most compelling evidence that I see in the case. It's gonna help sort of focus your report at the end of the day on the strongest elements. It's gonna give the expert an opportunity to respond to you. Hey, I think there's a weakness in this piece of evidence that you find so compelling. Um, and I think at the end of day, really, what, what, you're gonna be able to do is focus. You're you're experts opinion on on what's most important in the case.

spk_0:   17:09
So, um, in this process, I mean, I'm pretty sure you guys have some interesting stories you could share. Um, as you were, um, working to repair your experts in your cases. Can you give me something interesting from Jews here? Um,

spk_1:   17:27
yeah, I I love story time. Uh, okay. So before I started here at Feldman Shepherd, I was working in the defense sphere and we used in the Northern Pod an orthopedic surgeon who was very, very well known. Um, and I had really no controller say or are using this particular expert, but it was widely known that the expert was, um, aggressive. Like on cross examination. He wasn't gonna back down. And he could be baited, I think, into a confrontational atmosphere, which

spk_2:   17:58
I knew

spk_1:   17:58
about and just completely failed to. Just go to the Esperanza. Hey, man, you need to calm down like this guy's gonna come in and try and upset you. Just play it cool, please. That didn't happen. And what I ended up with was a cross examination that on video included my expert cursing out the defense lawyer. I mean, sorry. The plaintiff's lawyer, The other side, um, on video, Uh, not even off. Didn't even give me an opportunity to object and get off the record. Just got so angry at one of the questions that he just dropped a litany of F bombs in the guy's face on video. And, uh, and we ended up paying on the case or not.

spk_0:   18:34
Wow, I really don't have anything that exciting. In terms of expert preparation. I think all my experiences have been pretty cerebral, but, um, I definitely had a situation the first time I cross examined an expert, um, where it was just like that situation. I was really loaded. I was ready to go. I'd never cross examine an expert before, and we were in a situation where we were yelling back and forth at each other and and cutting each other off. So I think, you know, as the young lawyer, you got it. You can't do that. You got to stay calm. If the expert gets excited and angry, that's great. I mean, you've you've really done your job, but, you know, you got to stay calm and you got to keep going, but definitely that has to be part of preparation. Um, you know, making sure that your expert has the right, you know, tone, they're gonna give the right presentation. So, no, I don't have any stories that great, but similar experience. I was just on the other end, So

spk_2:   19:32
let's talk a little

spk_0:   19:33
bit about the positions. And, um, can you share any skills that have actually helped Thio? Let's go back in time, way, way back. And think about the very first. Your very first deposition. Um, and how much you've changed your process from then to now? Sure.

spk_1:   19:54
So, uh, when I start So I started out again on the defense side, and it was kind of practice where you got that One of the benefits of it was you got to take a 1,000,000 depositions. I took so many depositions in the 1st 3 years of practice and had no way of knowing how poorly I was doing it until I saw really good lawyers do it. So

spk_2:   20:14
we're gonna talk about that a little bit. Actually, I could use some transcripts. That's

spk_1:   20:17
great. Um, so here's what I've learned. Um, at least for my practice and you'll hear this. I think, from everyone preparation is absolutely key for for any successful deposition, particularly for young lawyer who's not as experienced, taking either contention steps or, um, subject matter depositions like that I'd be seeing the medical malpractice here, which we do a lot here. L mean, shepherd, Um so I would say prepare, prepare, prepare In terms of outlining, um, that's extremely important. But you also you don't need to reinvent the wheel in terms of an outline you're gonna be able to get get good outlines relatively easily. What you want to do is contour the outline to the specific deposition that you're taking. And I'm a big fan of going abroad to narrow. You want, you know, big bucket questions or areas of inquiry. And then you want to be able to go off script and narrow down the information to sort of its most granular level, to get as much information as you possibly can before moving on to the to the next subject. So the preparations is really, really key, obviously, in terms of who the witnesses as well, doing all the research that Bethany just talked about in terms of your own expert. You want to do that for any deposition that you take? That's that's oven adverse party. Um, what you got on preparation, Bethany?

spk_0:   21:33
So the way I prepare is a lot different than most people were prepared, and I think a lot of people would not agree with the way I did it, but certainly starting out. I had no idea what I was doing, and I wasn't really given much guidance. And I didn't have the experience of doing lots of depositions, I would say in my 1st 3 to 5 years like you did. But over the years, I spent a lot of time, um, reading transcripts of other attorneys in the office. So when I was doing a deposition, I would say What's a similar case? And I would go through their transcript and really see, um, you know, what's the structure of the questions? How did they ask the questions? And then you really have to develop your own style, what works best for me, which is different. And I know a lot of people wouldn't agree with this, but in terms of preparation, I sit down and I do the entire deposition in my head and I write down, I tape out every single question that I want to ask this person. And I don't do that because I go in the deposition and I then sit there and read the questions off the paper. But it's the act of writing out all the questions that prepares you for the deposition, and then you can go in cold and the question just come out of you and it just works like that. But then, if you have a moment where you freeze up where you get nervous, where you get scared, then you can always you have that right there and the questions are all written out for you, and it kind of gets you back on track. So I know every style is different for everyone, and certainly you can't look at the questions while you're doing the depositions. It has to flow. But for me, preparation and writing out all the questions is the best way for me to absorb the information and make sure that I cover all my bases when it's time to go.

spk_1:   23:09
Yeah, and knowing about the new well at this point, you know auras. Well, I'm telling you, that's not an exaggeration. She's She sits down and writes down every single question that she's gonna ask. Um, I don't, but it's only cause she's a better lawyer. And, uh, so in terms of reading transcripts, since I know all of the partners at this law firm will be listening to this podcast, You guys should all know that I creep through your files

spk_2:   23:32
constantly and I

spk_1:   23:33
read your deposition transcripts, and it's probably the best way to learn, like read as many transcripts of really good successful lawyers as you can and you'll pick things up along the way. I also think that, you know, comfort, I tell us that Young wears like comfort and control in deposition is is really key. Um, just like for a witness who's not used to hearing the sound of their own voice or kind of gets uncomfortable with silence or just feels the need to explain themselves a lawyer consort of fall victims of the same the same things in the deposition space. So being comfortable there, which just comes with time and practice is huge. And then there's like, you know, there's tricks. You can you can use the I like to use instructions as a way of regaining control over a witness I try not to give. There's a litany of instructions that everyone's familiar with. I'm trying to give those at the beginning of the deposition, and then when they come when I feel like a witness is getting too comfortable or whatever it is, I'll use the instruction to kind of get them on their back pad a little bit and feel a little bit less comfortable if that's what I'm going for or get them to talk more, whatever it is, Um and then, um, yeah, I I also a big fan, and I know that there are other firms that do this of just getting If you got something good, don't wait. Don't wait. I, um, again, story time. I took a position in our office a month ago of ah codefendant in medical malpractice case, and the co defendants nurse other co defendants the doc and the doc in in a in a written report that I knew the nurse probably wasn't privy to. Maybe it was I don't know, um, had just blame the whole thing on the nurse, right? And I don't know, I assume confidence, probably Defense lawyer prepared the nurse for this, but I don't know. So I'm taking the deposition and its right after the swearing in. I didn't even know it was just like, Have you seen this before? What it takes, I'm gonna read this. And it just made the nurse so uncomfortable and so defensive right off the bat that it ended up being great deposition because that's sometimes how it goes. It can't just flow from from one. Good thing,

spk_0:   25:28
I think to it really depends on what your style is again. It's great. Read deposition transcripts, but war experienced attorneys with more years under their belt can get away with more things than, say, J P or myself could get away with. So really adopt your own style. And don't lose sight of the fact that this is a deposition is really a fact finding exploration. Um, I know certainly very experienced attorneys used depositions to trick witnesses and get great confessions out of them and great information and recognize that that's not always possible. Your role is to really get us much information out of the person as possible, and certainly it's good if you get some testimony that's against their interests or against the interests off a corporation or another party. But I think it's the young attorney. The best thing to do is just focus on this as a fact finding exploration and for me. You know, I wish that I could be that attorney who was gonna jump out at the first question and asked the witness something really controversial. But that style really throws me off. You know, I need a warm up. I need a warm up for myself. You know, I'm going to go through those instructions for me to just get going and get warming up. And I'm going to cover some Dole areas before I jump out with them, you know, with a surprise document or with the most controversial point in the case. So it

spk_2:   26:49
really depends on

spk_0:   26:49
what your style is, how you feel comfortable with, and I don't think there's one way to do it. I think if you can do that, that's great. But if you can't, there are other ways to accomplish those goals

spk_1:   26:59
so true yourself, you're good enough and welcome to J. P. and

spk_2:   27:03
Bethany's self help power. So let's talk a little bit about

spk_0:   27:08
hurdles you've encountered along the way, so

spk_2:   27:10
I'm pretty

spk_0:   27:10
sure it has not been a pretty story the whole way. So let's talk about your first oral argument.

spk_2:   27:19
Talk to me about that. How was that

spk_0:   27:21
experience? You know, if you knew then what? You know. Now, what could you could you have done better?

spk_1:   27:27
You know, I wish I had time preternatural. I'm just so comfortable

spk_2:   27:30
that I've never You know what? I'll say this, you

spk_1:   27:33
know, I can't I can't remember. That was one of the benefits of starting out in that particular office doing that particular type of work. I was doing it so early that I don't remember specifically what my first oral argument was. I know that I would recommend that you memorize it cold. Anybody who is doing for the first time, there's no there's no you're gonna get that feeling, especially if you get a hot bench or you're in front of a mediator or a panel or whatever, and they start to pin you with questions. When you're you know you you a minute in or 45 seconds and you start getting questions in your brain, just like falls into your feet and you're just not gonna get to where you want to go if you don't really commit early on, um, to memorizing. Oh, you know what? I just thought of a terrible story.

spk_2:   28:14
Your story. Time, story, time,

spk_1:   28:17
time with pickles. Uh, so, uh, that's for podcast number two.

spk_2:   28:23
Okay, Got it. Can't give everything right. Right. Um, so this wasn't

spk_1:   28:28
technically an oral argument. But in that, in that same my prior life, I was sent, like, my third week on the job to dio a binding mediation in a case that was like a terrible case that we were gonna lose. And, you know, it was like, All right, we'll see what you d'oh. You know, maybe you won't get hit for a trillion dollars. I walk in and it's like, you know, it's it's me against this really successful plaintiff's lawyer who is a name partner at a good firm here in Philadelphia and a mediator who everyone in the world knows. And I'm sure knew this plaintiff's lawyer for for 30 years. And it was like walking into I got in there and I'm gonna be a today's Boyer day, and I was

spk_2:   29:05
like, so So that looked like it was like taking myself thes established

spk_1:   29:14
professionals who just they were probably laughing at me. But, you know, I came in, like, all fired up, and I was like, I'm gonna win this case. I'm gonna I'm gonna convince everybody that I'm great. I'm gonna take you back to the office. They're gonna be amazed that

spk_2:   29:25
I and I But it does tell us 100

spk_1:   29:28
$62,000 on my my third week of practice. And then on the way down, I took the elevator down with the mediator

spk_2:   29:37
who was like,

spk_1:   29:38
the whole way down here, just like you

spk_2:   29:39
know what you should do. You join plaintiffs practice like look how easy

spk_1:   29:42
that was for for that lawyer to just

spk_2:   29:44
come in and just crush you of the mediation. That's that's how it

spk_0:   29:49
all started. I think there are a number of things that stick out of my mind in terms of what happened to me early on in oral argument. Um, I'm just a very passionate kind of dramatic person, and I think you know, as a young lawyer, you have to know when is the right time to be passionate and dramatic and one is the time not to be. And usually it's a young lawyer. If they're sending you somewhere, it's not the time to be passionate, dramatic. So your neck and that you're not gonna win the case that the case management conference. That's like Rule number one. Um, I remember being in New Jersey on a summary judgment argument. They had filed summary judgment of the hospital because they wanted out of the case. Um, they said they weren't what we're vicariously liable for, the for the doctor. And I remember making a very impassioned plea to the judge, and it was a turnoff to him. So I think you know, you have to know what is the right demeanor. What is the right tone? What is the right way to present your argument? Um, and that'll get you far. I think also length of argument is very important. Assay young attorney. You're gonna spend a lot of time in Discovery Court and the people that do the best for the people that get up there. They give their argument in a few sentences and they sit down. Those were the people that we're gonna win the arguments because the judges do not want to hear about it. They don't want to hear about these squabbles. Um, so it's important that you're very precise in your arguments as young attorney, because it's unlikely that you're being sent to something that's that important that you need toe go that far, be that dramatic. So take a deep breath. Focus on what's the appropriate way to present your argument and be specific and concise.

spk_1:   31:31
Yeah, that's such a good point. And actually, I recently got some advice from one of the one of the name partners here at Feldman Shepherd, who made a really good point to me about jury trial presentation. Which is a lot of what you're trying to do is minimize bias. You have a bias panel, and you don't know which way that they're biased. But you know it's out there if you have a case on the plaintiff side and you think that one of the weaknesses of your case is that the defense is gonna argue credibly that your client is exaggerating that there's not there's not a lot here. I'm I get worked up like I'm I'm also passionate and overdramatic and all that stuff. So, like, you know, if you if you can't rein that in, then you run the risk. And this was something that's so obvious now that I just did not understand. You run the risk of the jury thinking okay, you know, passionate young, aggressive lawyer making a bigger case out of a small case. And you play right into the bias without really realizing it, thinking you're doing the right thing. That comes most natural.

spk_0:   32:29
And I made the exact same mistake under the exact same scenario and made a very impassioned

spk_2:   32:36
This was I'm not saying this actually happened to me. This was, well, your hypothetical scenario. Absolutely real life. A coincidence. Let's talk about

spk_0:   32:48
your first mediation. Um, can you give me some mistakes? You made, um, learnings? Takeaways. Thinks you actually you know better now. Um,

spk_1:   33:00
yeah, my first mediation. The mistake I made was losing 100 and $62,000 in my third week.

spk_2:   33:06
That's basically I could tell you about my

spk_1:   33:08
first trial. That's a better story. But do you have your first mediation

spk_0:   33:10
story? We'll talk about that, you know, is a young lawyer. You're not necessarily calling the shots of mediation. But I think what's really important is that one. The client has all the information. So as the young attorney sporting the older attorney partner, whoever you want to make sure that they have all the information specifically the things that the kleiner really gonna the client really wants to know about, You know, they will know at the end of the day, how much my walking away with. So as young attorney, make sure you have the lean information. Make sure you have the information. What are the costs on the file? How much have we spent? What's the fee agreement saying in terms of how much my attorney gets because I think mediations really fall apart either at the mediation because the client doesn't have all the information. They don't understand what they're going home with or the mediation is over. And you didn't have an explicit conversation with your client as to these are the costs these air the fee that I'm gonna take. This is what a lien is. You have to pay this back. So while I'm not the person calling the shots. I'm not the person negotiating at the beady ation, cause we do, you know, very high stakes cases. Um, it's important as the young lawyer that you're there being a supporting role in that attorney has all the information that they need so that you and the client could be on the same page and that you can successfully resolve the case.

spk_1:   34:23
Yeah, really Good point. Make yourself indispensable. Like Alexander Hamilton did with George Washington. Sorry, I saw

spk_2:   34:30
there's a story behind it. I need thio bad. No, but that's really

spk_1:   34:38
what you should look to do, not only with the client, but, um, it's such a good point because you can meet you want to be there particularly mediations you're supporting usually if you're younger, older, more experienced partner. And if you're gonna be helpful in that context, know the file cold in a way that nobody else is going to be ableto d'oh so that when that one weird question comes up from the mediator, you know, I don't really buy this or what you say. You have this evidence, I don't know. Whatever it is, be ableto whisper to your partner like you know, it's right here. This is the thing. And let he or she hit a home run and like, you'll be the silent hero. That's great.

spk_2:   35:15
Okay, let's talk about

spk_0:   35:16
your first trial. Pretty sure there stories to be told.

spk_1:   35:21
Eso it? So my first trial, I was I was, I think, 29 years old also with the defense at the gun shop. And I lost, uh, someone point, I believe

spk_2:   35:30
$7 million deal. It was a lot of

spk_1:   35:34
money. So I was sitting second chair, um, to, uh, Signet's to an older lawyer who was close to retirement. And it was a very, very good, very smart lawyer. But I would we were up against actually, the attorneys here at Feldman Shepherd, Um who, you know as the whole world, I hope knows, are exceptionally good at their jobs. And, um, it was a death case. It was It was horrible drowning case and I was sitting second chair and I was, you know, I've been going around in circles begging for an opportunity, like, just get into a courtroom cause that's what I wanted to d'oh! And this lawyer was great. He was like, you know what you could do? The opening. And you can also cross examine the liability expert.

spk_2:   36:14
That's not normal. Now, you shouldn't be allowed to do that. Um uh, but

spk_1:   36:20
like my regrets that I have from that trial we were gonna lose, I mean, we're gonna lose money. But the regrets that I have I have to do with not doing Maur. You know, I could have I could have closed. He would let me close. I could across more people. Um, but it ended up getting me, um, in large part of job here. Um, so I'm very thankful for it, but the lesson from the trial was for me. Just always be ready for the opportunity. You don't know when you're gonna get it in what form is gonna come and every chance that you get If what you want to do is be a trial lawyer. Every chance that you get in front of a jury in a courtroom, you never know who's gonna be watching. You never know who's gonna talk about you. You don't know. And love is a very small legal community. So just don't Don't let an opportunity pass you by just be ready for it, and then don't be afraid of it. You know, if you get an opportunity to open your first trial as a 29 year old, go do it and do your best with it and see how you do it. If you can cross an expert in your first trial, don't bring a clicky pen with you and

spk_2:   37:19
click the pen for an hour and then have have

spk_1:   37:22
one of the jurors ask the bailiff to tell you to

spk_2:   37:25
stop because it's embarrassing everybody. But just for my own, for my own consciousness

spk_1:   37:30
that the expert did say, if what I said was true, he would change his opinion. So whatever,

spk_0:   37:37
I think, um, my first trial experience waas a case that no one else wanted to deal with. And as a young attorney, that's usually what happens, right? This is great. You're going to try this case, um, you're gonna go do this, and if you look at it and you think about it, it's because no one wants to touch this case. No one wants to touch this client. It's a loser. So in my 1st 5 years of practice, it was within my 1st 5 years. The partner of my firm's that. Hey, we have this great commercial litigation case. Um, it's about franchises, something rather. And we want you to try it. And it was a bench trial, and the client was absolutely nuts. And, um, I had negotiated for her a great deal, but it was it was a family dispute, and she just did not want to settle. And I had to go through the motions and try this case with the client in my ear. You are winning. You are doing such a good job. And the the case was just a disaster. There was no way I was gonna win this case. Um, but again, going to your point about you never know who's gonna be in the room. Um, I made very good friends with depends council. Um, through that case, or actually, I was the defendant s o plaintiff's counsel. I made very good friends with plaintiff's counsel. He's a very experienced attorney in Philadelphia, and throughout the years we have kept in touch. We've referred each other cases, and we have a very nice relationship. So I think that even out of ah, bad, stressful experience out of a bad case where you're already going in with your head kind of hanging low, there can always be a silver lining, so that that would definitely be my my, um, remember, most memorable first trial experience to piggyback on that and talking about you never know what's gonna be in the room. J P. Why don't you tell us about your story, though? Um, the partners at the firm who you were litigating against, um, and they saw you. And they're like

spk_2:   39:46
a great guy. Uh, yes. So that so that it's the

spk_1:   39:50
same. It's the same trial that, um that I was just talking about and we went, um, just, you know, all the things that I've preached here today and will continue to preach on the broadcast I tried to put into practice when I was a defense lawyer, which was, like, be overprepared and like, care a lot about what you're doing and be ready. And I think that I was, and that rang out, just like, you know, as soon as we sat down, um, the the lawyers here at this firm, or are incredible, and it was obvious right off the bat. I mean, we were in body here and they had already digested basically everyone's information we got back there, and it's very standard in Philadelphia County was the judge's clerk running with individual wild deer. So, like it was, it was a relatively young clerk to. So there was a room there, you know, the partner here saw, like, there's a There's a chance there to advocate for his client back there And as soon as we sit down, he's like, You know, we can't We can't have a least one or two of these are our immediate strikes. We got a person in the panel whose husband works for the defendant. Um, and I was, you know, and I had also just by luck, um, seeing the same document. And I'm like, Well, actually, no. They work for this other entity that doesn't have anything to

spk_2:   41:01
do with the

spk_1:   41:02
city. And the partner wrote down my neck. I saw him write down my name and I'm like, All right, I got him like I'm gonna do my best work here. And then he teed off on me for so much money

spk_2:   41:11
the whole time,

spk_1:   41:12
like it was like a week and 1/2. And it was John Doe did, by the way. And Jason Terry, who are both exception.

spk_2:   41:16
And this is not a paid sponsorship. Just really, really

spk_1:   41:21
good at their jobs. Um, we're just the whole time. He was just like, what? You don't want You just pay me. Just just pay me the case. You're gonna end up losing just payment. You're doing a great job, but like, paint me and like, that's how really, really talented, exceptional trial lawyers are there just always in advocacy mode. There's no there's no let down. Um, and the last thing about that trial. So we're so I'm about we're about to open them all jazzed up. Like

spk_2:   41:43
if Hamilton had been out there, would have been listening to Hamilton 24 7 before the trial. So I'm, like, ready? We're about to open first opening to

spk_1:   41:50
a jury. Um, and and I'm just so pumped up and we're, like about to do it. Juries and panel, they call him in for openings. I lean over to this first share lawyer who I loved and still love. Great guy, man.

spk_2:   42:04
All right, I'm ready. Let's do this like you

spk_1:   42:05
know, Let's go. And he goes.

spk_2:   42:07
I don't know, man. I'm great. Thanks. I get I'm gonna get up here. What is

spk_1:   42:17
great did end up working out. Okay, so

spk_2:   42:19
let's talk a little

spk_0:   42:20
bit about, actually, um, that whole experience, you know, litigating against more experience attorneys and, you know, thinks you can say you've learned. Um, can we talk a little bit about that? Sure. I think as young attorney, like anything, it's intimidating. It's difficult. You have experienced attorneys who are going to take advantage of your age and run circles around you, and then you have the others. That will be more respectful. I think that as a young attorney, it's important to present yourself in the light that, um, shows that you know what you're doing that you know what you're talking about. And if you don't fake it, I mean, I remember I was making

spk_2:   43:00
fake until you make it.

spk_0:   43:02
I remember being in my first jury selection, and I really didn't know what was going on. I was trying the case by myself, and defense counsel said something that I knew I did it one and I just said, Well, that's not what the rules say, you know, and I you know, and that's not that's not great. But, you

spk_2:   43:17
know, just, you know,

spk_0:   43:18
fake it till you make it assert yourself, exude confidence, and that will lead to success.

spk_1:   43:25
Yeah, Yeah. I couldn't agree more that I, um I would say that, you know, uh, I've had basically, my entire practice has been against or with older, more experienced lawyers. So I've gotten kind of used to like playing this role, but it also, you know, my sort of natural Proclivities skew towards over respectful. You know, I am a sir, ma'am type person, which could really backfire on you, actually, now that I think about it, But, um, I always just try to be really, really respectful, but, um, just like Bethany said, like, don't back down. I think that, you know, particularly in what we do. Um, not only our adversaries, but also, you know, judges gain a lot of respect for you two, to the extent that you are willing to respectfully disagree with a position and to advocate for the position you think is correct. But to do so in a way that's not, you know, belittling to anyone. Doesn't you know I love the That's not what the rule says argument because not you, that saying That's what the rule says. You know, I I love doing stuff like that, like, Oh, you know, it's not. It's not me that disagrees. This council is a springboard of Pennsylvania. They disagree with the council, saying like there's a way there's a There's a line there to be walked where you could be, um, both a firm advocate, but also very respectful, and I think that at the end of that, you come out better for

spk_0:   44:39
it. I think also what you don't realize coming out of law school and going into it is it's better off the bat trying to develop a good report with defense counsel. You think you're in there right off the bat to be a zealous advocate, and that's not always the best role. Or that's not how you should start out. You know, these days I go into ah deposition or I go into a situation where I'm meeting defense counsel for the first time. I'm extending my hand. I'm introducing myself. I'm trying to make conversation because of the at the end of the day, especially as a plaintiff's lawyer, they're gonna pay money because they like you. And if you're a jerk, if you get into a fight with people, um, that's not gonna help your client. That's not being a good advocate for your client. So when you're in a situation where you're advocating, definitely be assertive, exude confidence. But in those moments in between, be friendly, be talkative and try to get the person to like you because I think that's the best that you can do for your client in terms off having a good outcome in the case.

spk_1:   45:42
Yeah, so true. Also, you're gonna take years off your life if that's the way you practice every single day. I I love older lawyers were just like, Listen, nobody's going to jail.

spk_2:   45:51
Um, well, it's gonna be okay. So

spk_1:   45:55
just like, you know, be respectful, be nice, and it'll it'll serve you well in the long run.

spk_2:   46:00
Let's go back

spk_0:   46:01
for a second, um, and talk again about your first trial. So you know your

spk_2:   46:05
confidence level. You're talking

spk_1:   46:06
about the one where I lost almost $2 million.

spk_2:   46:08
That's exactly where I'm going. So you know

spk_0:   46:11
your confidence is not all the way there. You know, you're overthinking everything. Anxiety is kicking in, and then you lose $1.2 million. So then what? How you as a young lawyer, it's your first trial. How do you proceed? How do you move forward from there? I

spk_1:   46:27
walked to the office in a dark cloud of shame. I was back there in, like, an hour and then mr dot it pulled up and pick me up from the office. And because he's a gentleman took me for a drink and told me about all the things that I had done wrong and how I could be better. And, um, that was an exceptional experience for me. I also got to meet a lot of the other partners here filming Shepherd. Um, and that obviously turned out well, I stayed on, um, my prior job for another year got a decent amount of additional jury experience. And then when I was ready to leave, you know, they were my first my first call and ended up working out great. But no, there's no this is another really great piece of advice that I heard early on and has been repeated a number of times since then. Bye bye, folks. Here, um, you you can learn from winning for sure, but you learn way, way more from losing. I mean, if you were willing to be, um, sort of No, no sunglasses, no no rose colored glasses in terms of your own self evaluation, in terms of your willingness to read your own transcripts, which is brutal, or to listen to yourself, I'm sure if I ever listen this podcast, I'm gonna hate

spk_2:   47:38
everything. But if you just like,

spk_1:   47:41
if you can If you can look at yourself clearly and then go and not be afraid to go ask people. Hey, what would you do that it's the first thing that if I have a bad result in any kind of take a bad death, If I do whatever, I will go and ask somebody who I respect. Usually Mark Tanner or Dan Weinstock or John Doe Dig or Alan Feldman. Carol. All these people take amazing depth. They're all incredible, lawyer. So you just go ask him, like, what would you do different and the things you learned from that process? Our gold, I mean much more than doing well.

spk_0:   48:10
So how important is that feedback? And we'll go back to you in a second. You know, actually, removing the ego from the fact that you just lost in all of that and actually going for the learning experience and reaching out to, you know, counsel and getting that feedback

spk_1:   48:24
for me has been invaluable. Like, I I don't, um I don't have any way of of learning without somebody and that that was part of the problem with the prior position, though I loved it. And I love the people that I worked with, and I love the work, and I love being constantly sort of onto going from trial a trial. There was no opportunity for, like, meaningful mentor ship in the courtroom, no opportunity to learn from people who've done it before and sort of played the game at the highest level. Um, and you don't really have a sense of like how how much air in the minor leagues until you like, see the people who were doing it at the top and just start pinging them with questions constantly mean. One of the most valuable parts of working here is that I've never seen Alan Feldman's door closed ever. So you can just walk in there with the most mundane question and it will just give you a straight up honest answer about what you could do better. And you just if you want, If you're I mean, travelers lose, that's what happens. Like if you're going. If you want a traveler, you're gonna lose sometimes, Um, And if you wanna get really good at it, you just need to be able to face that soberly and solicit and take advice from people who who can watch you an advice.

spk_2:   49:29
Can you

spk_0:   49:30
actually approach the same question? But, you know, you're a woman in a male dominated industry, So how do you, um, you know, capitalized from that? You know what I mean? How do you I mean, I think there are a number of different ways you can capitalize on it, um, in terms of and this is kind of getting away from what we're talking about, but I find it's a good thing in terms of business generation. Um, you know, there are a lot of people in our industry that male dominated, and they find it refreshing to deal with a woman. Go out with a woman, interact with a woman, and they like it. But it's definitely hard in terms of presenting yourself at trial. Um, presenting yourself with other attorneys. Certainly some males attorneys tried to bully you, or it's difficult when you go to trial, and only feedback from the jury is that they like your outfit. Um,

spk_2:   50:26
you are a tremendous stress, Miles. Thank you. Fashion. So I

spk_0:   50:30
think, um, you know, and they're certainly times that judges have said things to me that we're a little off putting, like they'll refer to every male in the room by Mr. And then they'll call me Bethany Year will have, ah, defense counsel. Call me honey, and for me, you can't, you know, let those things upset. You can't focus on it, and certainly other women are gonna have a different opinion than I do. But it's not something you want to dwell upon. It's not something you want to make a big deal. You have to focus on you on the inside. You have to focus on being the best trial attorney you can be. And certainly as a woman, I think there are benefits in terms of presenting your case to the jury and making an impassioned argument. So you have to look at the pros and not the cons. But, you know, be strong. Put those things in the back of your mind and keep moving forward. Great. Now, um, and I die aggress. Let's go back to the idea of you know, you just lost your first case, you know? And what? So

spk_2:   51:29
being a

spk_0:   51:30
trial attorney sucks? If I can say that because I remember, you know, was a young lawyer, you're going to court. The judge is yelling at you because you're doing something really stupid that you shouldn't be doing. Then you go back to your office, you pick up the phone and your adversary is telling you you're an idiot, and then your client's mad at you for something, so it's something you have to get over and losing a trial never gets easier. I think J P probably feels the same way. But when you are an impassioned advocate and you are in the heat of the trial, it doesn't matter how bad your cases you think you're winning because you're doing a good job. So when the case is over and you lost. It feels terrible. You really question yourself, you know? What was I thinking? What did I do? Right? What did I do wrong? And you question your own judgment? You know, why did I think that I was winning? Why did I think that the jury was on my side? And I think you have to take a step back and just really a re evaluate. Okay. Why did I lose this case? And I would say, nine times out of 10. It has nothing to do with us and attorney. It has to do with a problem in your case, A problem with your client, and then it goes back to okay. Why did I select this case in the first place? You know, maybe this is not an issue of me as a trial attorney. Maybe this is an issue off my case selection skills. So I think that you're never going to get over losing a trial. You're never gonna feel better. You're never gonna stop second guessing yourself. But in the back of your mind, you need to come back and remember that you didn't lose because of you. you lost because there was probably a problem with your case that you overlooked that maybe you failed to fix during discovery. Maybe this is a case you should have never taken in the first place. Um, but it never gets better. Never gets easier. I think it's just you develop the skills to deal with it, and you become more equipped to handle losing in tow understanding to evaluate how you're not going to do this again, whether it be not taking the case or doing something different, not using a particular expert again. But at the end of the day, it's not because you made a terrible closing argument or it's not because you asked the wrong questions on cross examination. It's the totality of the case and a lot of times with jurors. It's something completely beyond your control. Great. So let's wrap it up. So, um, let's go over. Just take aways, right? Can you each give me three things that you would tell your younger self? Um, from stakes, you name it. You can pick and choose three things that you feel like. You wish you knew. If you knew then what? You know. Now, um, things not to dio.

spk_1:   54:26
Um, sure. Okay. So one, uh, how young in my time

spk_2:   54:31
talking Thio. Hopefully not 15. We're going back

spk_0:   54:36
to just graduating law school. Getting your life

spk_1:   54:39
2027. All right, So her name is Shauna Mallet. She's at Villanova.

spk_2:   54:44
Lost. We'll go find her. All right, That's number one number Number two is like so much happens

spk_1:   54:51
in little and you think that you, like, have a handle on it, And you're gonna be this lawyer that you definitely can be like, You can go and be a great lawyer and it takes a lot of work, and you have some conception of that at that age. But you don't have any understanding like how much of yourself you'll have to dedicate to this practice if you really want to get really good at it, which is something that I certainly hope to be someday and then something that takes a lot of time. But there's so much that goes into it. That's not has nothing to do with, like, how compelling and advocate you are, like there's things that, like in that mediation, I I could never have sort of understood. Um the outside of the law school classroom factors that went into how a mediation gets to where it is and how it how it resolves and how money changes. There's just like a lot that happens. It's completely outside your ability to understand. So just the open to the notion that you don't know anything, be humble in your approach to learning the law, um, and learning the basic skills that you're gonna need throughout your career and be unafraid to ask for advice and guidance. I mean, that would be number number two. And, um, I guess number three would be like, do

spk_2:   55:59
the closing argument, man. Like, what? Do you scared half go?

spk_1:   56:01
If you get an opportunity to do the closing argument, do the closing argument. And if you if you're allowed to cross everybody in the trial, just don't turn anything down out of fear, because you don't regret that I have, um, and shadow to Swarthmore College soccer. They're in the Sweet 16 for the incidentally tournament right now. Um, if I could talk to those kids, it would be like, you don't I don't regret, um, the mistakes. Really. I regret, like the times that I made decisions based on fear or nerves, or allowed that to be the controlling factor and doing something like throw that aside and go with your gut in and learn

spk_0:   56:35
a number one for me would definitely be, you know, have the right demeanor. Have the right tone, have the right presentation. I think, you know, coming out of law school. It was my natural instinct to be an advocate and to be someone very overly passionate. And it just wasn't right. And I didn't make the connections with they defense counsel, the court that I should have made. So it's it's important to know when is the right time to be an impassioned advocate and when it's not, and certainly as a young attorney, I thought that was all the time, So that would be my number one. You're not gonna win the case that the case management conference, um, know what your role is and understand what you're supposed to dio Number two would be the importance of mentorship. I really didn't have, um, that many significant connections as a young attorney that I now realize our vital for the continued success of a young attorney So it's important that you make connections with more experienced attorneys partners both inside and outside your firm, because the people that are gonna guide you those of the people you're going to go to and asked questions. And when you're a young attorney and you don't have anyone to ask questions, it's difficult and you don't know what to d'oh. So start early, building those relationships and number three, the most important thing for me would be you need to start networking. I definitely did not make any networking efforts or connections my 1st 6 years in practice, and they look back at that and think about

spk_2:   58:04
how many

spk_0:   58:05
people could I have met. How many people could have connected with that really would have changed its trajectory of where I am today. So it's uncomfortable. It's difficult, but get out, get out there, make connections, have a drink, loosen up, talk to people. Um and it will really improve and enhance your career. So those would be my three takeaways for today. So

spk_2:   58:28
I've got I've got two quick things to close on. One with respect to Miss Network Nika Tennco. If you're going to see her at a case management conference anytime soon. Show up. Prepared to argue the case gets, he's gonna win it. And

spk_1:   58:40
number two, If you are a member of the Philadelphia Bar Association, do the right thing and go cast your vote

spk_2:   58:48
right now for

spk_1:   58:49
Bethany. Nika Tennco to be on the wildy executive committee. She's running. She's qualified. Go vote for

spk_0:   58:56
Thank you for your vote of

spk_2:   58:57
support. I didn't say I'm voting for you. She Oh.

spk_1:   59:04
Oh, thank you, guys. So much for joining us here on the podcast. Feldman Shepherd with Bethany and J. P Working title And we will see you next time.