February 18, 2019

Ken Eichner: Baditude and Other Trial Tips

Even though I have picked 135 juries, and have worked as both a public defender and prosecutor, I still have a lot to learn when it comes to navigating the ins and outs of the legal system. Being an effective litigator and successful at trial is a life-long endeavor, is rarely smooth sailing, and can only come through practice and dedication. But, as of today, this is what I can share with young lawyers who are just entering the fray:


Bad attitude. Baditude. Nastiness. Lawyer ego plus client ego plus a sense of entitlement equals Baditude. Lose it. It will damage your case and your reputation. Just be kind, for everyone is fighting a great battle.


Your clients will ask you to do things that are far worse than anything you ever thought of in your darker moments. They will ask you to hide assets, put on false testimony, and mislead the court. You can’t. You won’t. Be firm and dismissive (see baditude). If it comes to it, negotiate the return of their money. Show them a legal directory and tell them there are plenty of other choices available. Show them the door.


Compete with yourself, not your opponent. Aren’t you trying to best your last court efforts and learn from your mistakes and missteps? Make a friend out of opposing counsel. You are a member of a community. Your opponent is also your brother and sister at the Bar, as they used to say many years ago. Sure, there are some fools out there, but there are also the boys and girls that brought us seat belts, clean water, desegregation – lawyers are the social architects that have transformed society into a better place. Add a sense of humor to that, and you have some decent people to have lunch with.


Anyone can have the will to win, but only a few have the will to prepare to win. Instead of worrying about new business and search engine optimization and marketing, drill down on the cases you have. There is much to do on that file and you know it. Work the cases you have until you know every scale on the hide of the fish.


Walk away from the office. Take a break from obsessing and bickering over discovery. Grab the file and take it to a coffee shop or a park. Look outside. It’s a sunny day in Colorado. (Aren’t they all? It’s one of the major reasons we live here.) Now look back at the file. What is the theme? What is your story? If you do not know how to construct a story, read Robert McKee’s book. It is entitled, what else, “Story.” It is the bible for screenwriters. You don’t like movies. Fine, read “How To Argue And Win Every Time” by Gerry Spence. Either book will serve you.


Run an ad on Craig’s list for mock jurors. Try your case in front of the mock jurors at the office on a Saturday. Talk to the mock jurors. Listen. Try the case in front of a real jury. Talk to the jurors. Listen. They are the ultimate consumers of your product. You can learn a lot from them.


If you are lucky enough to get the offer – take any position in the government that allows you to try cases. Muni or County court, public defender or prosecutor – just try cases in front of juries. It is a tremendous opportunity. You will be tossed into trial with no experience. Chances are, you will be annihilated. So what? It is a great education. You will develop a preternatural sense of ease. Short of that, the best thing to do is sit in court. Take your files, go down to the courthouse. Ask the bailiffs and courthouse staff who is in trial. Then try and find out who is worth watching. Sit in that courtroom and drink up the art of trial advocacy. A great, heartfelt story is being told with no baditude and a ton of preparation.

Kenneth F. Eichner is the principle of The Eichner Law Firm in Denver, and author of D.A. Diaries, a novel about the explosive combat zone of urban trial law. He earned his law degree from the Antioch School of Law in Washington, D.C. and has lectured in trial advocacy at the University of Denver and Georgetown University. Ken has been published in The Colorado Lawyer, The Washington Post, and The Huffington Post and his cases have been covered by The Washington Post, The Rocky Mountain News, The Denver Post, and 60 Minutes.
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