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The Art of the Trial Lawyer and The Lure for the Untrained

I was an electronic engineer working for Westinghouse and an expert on the weapons control system known as AWG-10 that was in the nose of the F4-J Phantom aircraft. That before I decided to go to law school. In my engineering world, virtually everything was yes or no, 0 or 1, on or off. I come from a family of 10 and many advanced degrees. My father was a college president and 4 of my siblings have law degrees. I decided to go to law school primarily because I wanted an advanced degree. And it didn’t hurt that it would be in a field where things were governed by precise written rules and precedent. I thought I would be a patent lawyer. That didn’t happen and I ended up as the third lawyer in a small law firm in Upper Marlboro, MD. I had criminal cases, divorce and custody cases, estate cases, and auto accident cases – we did everything. I was in court almost every day. As each day passed, almost imperceptibly, my rigid view of the world and the practice of law eroded. I recall vividly finally one day emerging from the courthouse in Upper Marlboro having either won a case I should not have won or lost a case I should not have lost. I don’t remember which. What I do remember in that moment was the realization that the world of law is never black or white – it is always somewhere between those two extremes. It is in that gray area where we lawyers practice our art.

It is in that gray area where the untrained may be crushed.

Today, I read an opinion from the Maryland Court of Special Appeals.  The first paragraph is: “No matter the perceived strengths or weaknesses in one’s position, predicting the outcome of any trial—jury or non-jury—is more art than science, and uncertain art at that. This is no less true in personal injury cases, particularly cases in which the extent of the plaintiff’s pain and suffering rests on the credibility of the plaintiff. That’s why some plaintiffs with unrebutted testimony of significant pain and suffering may be awarded little
to nothing in non-economic damages, while other plaintiffs may receive substantial noneconomic damages awards for non-permanent injuries associated with minimal economic damages. That most cases settle before trial owes, in part, to the speculative nature of
predicting the outcome in advance.” While this quote is about an auto accident case, it is true for criminal cases, divorce and custody cases, estate and trust cases – virtually anything that ends up in court. And it is true not only for trials but also arbitrations, mediations and settlement conferences.

I have practiced law now for 47 years. As each day passes, I discover new shades of gray and further appreciation for the art of being a trial lawyer.

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