Lawyers: Winging It Since 1850

“If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.”  That is an excerpt from Abraham Lincoln’s notes in preparing a lecture to a group of young lawyers. Then, as well as now, the ‘Unprepared Lawyer’ is a topic of much debate.

Recently, the lawyers for Jerry Sandusky claimed they were not prepared to go to trial and were often times “flying by the seat of their pants.” While that case went to trial, other attorney’s have refused to try a case they were unprepared for and put in jail for their refusal.

Arguably, there is a big difference between the two cases linked above. Sandusky was arrested and charged on November 5, 2011 and the trial began on June 11, 2012. Whereas, Public defender Brian Jones was assigned the case the day before trial. But they illustrate a point, lawyers are often unprepared for a trial date. Sometimes, circumstances are outside their control, i.e. when a judge is unreasonable and won’t grant a continuance. Sometimes, it is because they simply choose to wing it.

I have tried cases and argued motions where the opposing counsel didn’t bring a copy of the exhibits, didn’t interview our main witness before trial, or didn’t research the law in New Mexico. Sometimes, their unpreparedness didn’t matter and they didn’t suffer any consequences. But, sometimes, their motion was denied outright.

A common saying by law school  instructors and law practitioners is, “I may not be the smartest lawyer, but I will be the most prepared.” Being prepared separates the good lawyers from the great ones. For example, a good lawyer might be able to say ,”Judge, I think there is a case out there on that issue saying the DOT has a legal duty.” That attorney might be right. And if they have a reputation for being smart, the judge might believe them.

A great lawyer will say, “Judge, Lujan v. NMDOT, decided August 4, 2014 by the New Mexico Court of Appeals in paragraph 32 upheld that the DOT has a duty to use ordinary care to remove hazards from the road. I have provided defense with a copy and I have a highlighted copy for the court. May I approach the bench?” That attorney is right, and they can prove it.

By the way, here is a link to that case.

Part of my experience as a young lawyer has been the absolute requirement of having this level of preparation when going to court. A young lawyer can’t rely on perceived credibility, they have yet to establish it. There is a reason that advertisements put lab coats on regular citizens or why some people don a fake pair of spectacles or put a touch of grey in their hair. These ‘tricks’ to make a person seem more credible may work some of the time, but they cannot prevail against an attorney who is prepared. If they do, there is usually an appeal. That’s why as a lawyer, you have to have done the research. Research is time consuming and, as Lincoln said, can be a drudgery.

A friend of mine often said whenever I asked him a question I didn’t know, “well, let’s consult the law.” I hated that answer at the time, but not being “exempt from the drudgery of the law” made me better prepared when I found the answer. Those attorneys who do that, can better represent you and expose lawyers who are just winging it.

So, make sure your attorney isn’t relying on her reputation or his natural abilities. Read up on the issues in your case in the helpful links page of this blog. Ask your attorney some well thought out questions and see if they have the answers or more importantly, if they will find out the answers to questions they don’t know.

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