My dad practiced law, and he told me when I started, “You need to try a lot of cases, so you get good at trial work” and have a “bite with your bark.” He said, “you go try everything, try a cheese sandwich.”
So, early in my career, I suffered several losses at the courthouse and wondered why. Was I not any good at trying cases? I tried a bunch of auto injury cases back in the 1990s. I remember twice having back-to-back jury trials. One jury went out to deliberate a case. While they were in the jury room, I picked another jury and started a second jury trial right then, same day, same courtroom, different client, different defense attorney.
When the jury from the first case had a verdict, we stopped the second case, excused that jury for break, and got the verdict from the first jury. When I had lost several trials, I had to go back and look and analyze what happened. That was when I figured it out. My problem had been case selection. I was trying some cases that were like my dad’s “cheese sandwich.”
Let me share one of them with you, and perhaps it will make you smile. My client had borrowed his sister’s car, and he did not have a driver’s license, never had one, never been a licensed driver. He left skid marks from his lane into the oncoming lane of travel. That is right; there was evidence he left his lane of travel and entered the lane of the oncoming car. Photos from the scene, showing the skid marks, also showed a house in the background with a lady in a rocker on the front porch. She was listed on the police report as a witness.
She had been in that same rocker on that same porch the day the accident happened, and she said my client drove into the oncoming lane of travel, hitting the other car, consistent with the skid marks. I know, I know, you’re reading it right– witness and physical evidence demonstrating my client was the one who caused the collision. Obviously, an extremely hard case to win. My client was at fault. What was I thinking……. I know, “try a cheese sandwich.”
BUT…
If you try enough “cheese sandwiches,” you learn. Later I had a case where my client ran his car into the car in front of him, causing him injuries. The car ahead had run out of gas, was stopped in his lane of travel, and he hit it—middle of the day.
The defense argued that my client should have seen the car ahead of him stopped, and he should have slowed and stopped so as not to hit it. It was a good defense argument and usually a winner in North Carolina with contributory negligence.
That means if you are at all responsible for the event which causes you harm, you lose. Even if you are one percent at fault and the other is ninety-nine percent… you lose. So, hitting the car ahead of you is generally considered to be much greater than one percent of the cause of the collision. However, I was able to convince the jury my client was not at fault, and we won that case
So, the bottom line. To get good at something, you must practice, and the more you practice, the better you get, and the more you practice the difficult shots (or for the trial lawyer, cases), the better you get at winning complex cases (or making difficult shots). If you try slam dunk cases all the time, you simply will not get as good as if you had tried difficult cases. Hence the value of a “cheese sandwich.”
– Thanks for the great advice, dad. I love you.
