From writing briefs, to dealing with your expert witness who drops the F-bomb, to going heard-to-head with more experienced lawyers, Feldman Shepherd attorneys Bethany R. Nikitenko and James P. Faunes share their tips, strategies and survival techniques for young lawyers. And yes, a few funny stories.
Feldman Shepherd’s young lawyers share their advice, tips and strategies for young lawyers who want to jumpstart their career success.
How to Write a Legal Brief
Danelsy Medrano: Thank you for joining us guys. So let’s talk about your top five techniques when writing briefs.
JP Faunes: Yeah, great question, something that all young lawyers confront. Setting aside for a second, the sort correct structure that everyone learned in Law School and the obvious advice of Shepardizing your law. You never want to be the person who cites, bad or overturned law. I like to begin the process with a pretty in-depth outline of what I’m trying to accomplish. I usually, it’s a bare, nuts and bolts type outline with the sort of three strongest points that I’m trying to make. And then those points are supported by what will ultimately become the first sentence of each paragraph throughout the brief. Bethany, what do you think about that?
Bethany N.: I think that’s a good idea. 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 and you’ve never seen anything like that before and you could get scared. So my suggestion would be: break it down. 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.
Bethany N.: 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 would be: don’t get overwhelmed and break it down, and two: pay attention to your writing and your writing style.
JP Faunes: Yeah, that makes a lot of sense in terms of the structure, I guess. Different Law Schools do different acronyms for this, but at Temple Law I’m a proud Temple Law alumnus, we used CREXAC conclusion, rule, explanation, application and then reassert your conclusion. That’s always worked well for me. I think it really highlights what you are trying to accomplish in a brief. It saves a judge and the judge’s staff time in sort of digesting your points.
JP Faunes: And to 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, less is often more in the adversarial context and I find that that is absolutely true, at least for affirmative briefs, not responsive briefs, but affirmative briefs that I’m filing in supportive motions and in limine. We almost on the plaintiff’s side are never filing 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 does it. Bethany, how many motions for summary judgment have you filed in last year?
Bethany N.: In the last year? In my whole career I’ve filed two or three.
JP Faunes: Okay. That’s two or three more than me, so congratulations.
Bethany N.: Thank you.
JP Faunes: What do those have to do with those dispositive issues? What are we talking about here?
Bethany N.: They really weren’t dispositive 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 going to put on the table at trial. So really one of them was only a dispositive motion at which we won on liability and the other two are medical malpractice cases where we were never going to 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.
JP Faunes: There you go. Bethany’s over here playing chess. I’m playing checkers. She’s getting you to show your cards. So yeah, the outline is definitely important. Another thing that I would focus on in a common error that is very easy to correct, and I see a lot from particularly high volume shops, is just a failure to print the document and read back over it one time before submitting.
JP Faunes: The amount of times that I am responding to briefs that have easy to correct grammatical uniformity or spelling errors. 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 process to have, however much time you’re going to need to read back over the entire brief in hard copy. I can’t stress that enough. Do 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 this same point that I think will be appreciated by the court in the same way without spilling too much ink on a page.”
Danelsy Medrano: So 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. What would you say is the one thing that you must do as you work through this process? There is a lot of, “Well you know, is my writing good enough? Am I actually pointing the right information?” There is a lot of overwhelming amount of information to work through and actually put it all in one piece of paper. So what would be the one thing you must do, in creating these documents?
JP Faunes: Yeah, so for my practice I think that kind of depends on your objective. If I’m responding to a motion for summary judgment then obviously the most important thing that I need to accomplish is to develop genuine issues of material fact and here at 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 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 soundbites 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.
JP Faunes: “Oh, I understand. The defendant’s point here,” and obviously they’re going to read that motion first. “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 the 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 an in limine motion 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 think I know at this point, the way that 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 as quickly as possible. Make your point and get out. Bethany, what do you think?
Bethany N.: I think on kind of more a global perspective, because you’ve addressed the summary judgment and the motion in limine, 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 cited, 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: 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 Two, make sure that the case law that they’re citing and representing to the court is indeed what it says. So I think from a global perspective in terms of just your basic response, knowledge is the most important.
JP Faunes: So important. And you come into a podcast like this thinking it’s going to be dry. “What are they really going to 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’ve asserted and you’re going to tee off and hit a home run in your response. So great point.
Bethany N.: Yes. Because they’re going to lose credibility. They’ve lost credibility with you. They’ve lost credibility with the court and it’s a good place to start.
How to Prepare an Expert Witness
Danelsy Medrano: Great. So let’s move right along and talk a little bit about preparing an expert witness. Talk to me about tips, tricks, the whole magic hat, whatever you come up with on that realm.
JP Faunes: Yeah. So for me at least starting out in trial practice, this was one of the most intimidating parts of my practice. It’s hard enough to cross examine an expert witness who has so much more knowledge than you in any given area, but it to prep your own witnesses to come across as a compelling advocate and someone who understands the substance of what you’re trying to get an opinion on, can be really intimidating.
JP Faunes: So I would sort of break it down into pieces. So when I’m initially consulting with an expert on a 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 are the weaknesses,” and I think that’s really helpful when you begin a relationship with an expert because to some extent experts are incentivized to help you support your case, they want to be helpful, 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 case is without preparing you for what will be the challenges. And that can be a mistake, in terms of your initial footing in a case. What do you think Bethany?
Bethany N.: In terms of preparation of experts, it’s definitely something that’s very scary and intimidating as a new attorney because you’re meeting with an expert who has a large basis of knowledge that you don’t have and you’re going into a situation that is pretty intense. And I think the first piece of advice I would give is 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 are going to give a good presentation of their testimony and the information that you want to provide.
Bethany N.: 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, these are the kinds of people where you need to meet with them briefly, but they’re just going to roll with it, they’re going to know what to do. 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, “Reasonable degree of medical certainty”? Because it’s not 51%, so make sure they know the buzzwords, they know the phrases, they know the things that they’re going to get caught up on. And that’s a good place to start.
JP Faunes: Yeah, such a good point because so many experts practice 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. The expert may not know.
JP Faunes: I’m big on like actual, here’s a trick that I use. I like to say things like, “This is the role that I see you in, in this case, this is how I see you supporting the case. 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 it’s two folded; it 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 going to know a lot more than you are. And it also kind of gives the expert an opportunity to come in and be the hero.
JP Faunes: I mean, most experts would want you to acknowledge that they have this knowledge. You’ve come to them for a good reason. They’re 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,” or, “Here’s something maybe you haven’t thought of,” just get them talking. 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.
JP Faunes: And then I think things shift gears when you start to talk about reports. 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 prepped for trial. What do think about that?
Bethany N.: Let me just go back for one second. As the young attorney going into the deposition, you want to make sure you’re aware of any landmines 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, what depositions have they given? A lot of them know they can tell you off the bat, “By the way, they’re going to ask me X, Y, and Z. They know I charge X amount an hour. They know in this case, I gave this testimony, but it doesn’t really apply to this case because of this reason.” So just make sure, as a young lawyer when you’re sitting in a deposition of one of these landmines 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.
Bethany N.: With regard to 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 accustomed to writing. So it’s a process that involves going back to the expert over and over again and having conversations in terms of, “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, that covers all your bases, especially in Pennsylvania because we don’t have expert depositions.
Bethany N.: 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 writers. So I think my biggest recommendation would be that you need to be patient. You need to understand this is going to take time, you need to be aware of your deadlines, you need to lie to the expert and tell them the deadlines a month before, to make sure that you’ve covered all your bases and you have a working product that’s ready to go when it’s due.
JP Faunes: Yeah, not even a lie. Really just exaggerating when the deadline is. In terms of a practical way to accomplish that, something that I like to do is to write a really in depth letter to an expert that I’m going to attach the exhibits and relevant evidence to. And if that letter looks sort of structured the way that I hope the expert report does, then that makes the expert’s 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 going to help focus your report at the end of the day on the strongest elements. It’s going to 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.” And I think at the end of the day, really what you’re going to be able to do is focus your experts opinion on what’s most important in the case.
Funny Young Lawyer Mistakes
Danelsy Medrano: So in this process, I’m pretty sure you guys have some interesting stories you could share as you were working to prepare your experts in your cases. Can you give me something interesting? Some juice here?
JP Faunes: Yeah. Well I love story time. That’s my favorite part. So before I started here at Feldman Shepherd, I was working in the defense sphere and we used an orthopedic surgeon who was very well known and I had really no control or say or over using this particular expert, but it was widely known that the expert was aggressive. On cross examination, he wasn’t going to back down and he could be baited, I think into a confrontational atmosphere, which I knew about and completely failed to just go to the expert and say, “Hey man, you need to calm down. This guy’s going to come in and try and upset you. Just play it cool please.”
JP Faunes: That didn’t happen. And what I ended up with was a cross examination that, on video included my expert cursing out the plaintiff’s lawyer, the other side, on video, 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 we ended up paying on the case, believe it or not.
Bethany N.: Wow. I really don’t have anything that exciting in terms of expert preparation. And I think all my experiences have been pretty cerebral, but I definitely had a situation, the first time I cross examined an expert where it was just like that situation. I was really loaded. I was ready to go. I’d never cross examined an expert before. And we were in a situation where we were yelling back and forth at each other, and cutting each other off. So I think, as the young lawyer, you can’t do that. You got to stay calm. If the expert gets excited and angry, that’s great. You’ve really done your job, but you got to stay calm and you got to keep going.
Bethany N.: But definitely that has to be part of preparation, making sure that your expert has the right tone, they’re going to give the right presentation. So, no, I don’t have any stories that great, but similar experience, I was just on the other end.
Danelsy Medrano: Great. So let’s talk a little bit about depositions and, can you share any skills that have actually helped you? Let’s go back in time, way back and think about your very first deposition and how much you’ve changed your process from then to now.
JP Faunes: Sure. So I started out again, on the defense side and it was the kind of practice where, one of the benefits of it was you got to take a million depositions. I took so many depositions in the first three years of practice and had no way of knowing how poorly I was doing it, until I saw really good lawyers do it.
Danelsy Medrano: We’re going to talk about that story in a little bit. Actually.
JP Faunes: I’ll get you some transcripts. That’s great. So here’s what I’ve learned, at least for my practice there. And you’ll hear this, I think from everyone. Preparation is absolutely key for any successful deposition, particularly for a young lawyer who’s not as experienced taking either contentious deps or, in depth subject matter depositions like the type you see in the medical malpractice sphere, which we do a lot here at Feldman Shepherd. So I would say prepare in terms of outlining, that’s extremely important, but you also don’t need to reinvent the wheel in terms of an outline. You’re going to be able to 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 broad to narrow. You want big bucket questions or areas of inquiry and then you want to be able to go off script.
JP Faunes: 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 next subject. So the preparations is really, really key, obviously in terms of who the witness is 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 of an adverse party. What do you got on preparation, Bethany?
Bethany N.: So the way I prepare is a lot different then most people would prepare 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 first three to five years like you did. But over the years, I spent a lot of time 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 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.
Bethany N.: I write down, I type 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 questions 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.
JP Faunes: Yeah. And knowing Bethany well at this point, and for those of you who know her as well, I’m telling you that’s not an exaggeration. She sits there and writes down every single question that she’s going to ask. I don’t, but it’s only because she’s a better lawyer. And 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 constantly and I read your deposition transcripts and it’s probably the best way to learn. 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 comfort, and I tell this to young lawyers a lot, comfort and control in deposition is really key.
JP Faunes: 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 a need to explain themselves, a lawyer can sort of fall victim to those same things in the deposition space. So being comfortable there, which just comes with time and practice, is huge. And then there’s tricks you can use. I like to use instructions as a way of regaining control over a witness.
JP Faunes: There’s a litany of instructions that everyone’s familiar with. I try not to give those at the beginning of the deposition and then when I feel like a witness is getting too comfortable or whatever it is, I’ll use the instruction to kind of get them to backpedal 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. I also am a big fan and I know that there are other firms that do this, if you got something good, don’t wait. Don’t wait, and again, story time, I took a deposition in our office a month ago of a co-defendant in a medical malpractice case and the co-defendant was nurse, other co-defendant is the doc, and the doc, in a written report that I knew the nurse probably wasn’t privy to, maybe it was, I don’t know, had just blamed the whole thing on the nurse. I don’t know, I assume competence, probably defense lawyer prepared the nurse for this, but I didn’t know. So I’m taking the deposition and right after the swearing in, it was just like, have you seen this before? Why don’t you take a second to read this? And it just made the nurse so uncomfortable and so defensive right off the bat that it ended up being a great deposition because that’s sometimes how it goes. It can just flow from one good thing.
Bethany N.: I think too, it really depends on what your style is. Again, it’s great to read deposition transcripts, but more experienced attorneys with more years under their belt can get away with more things than say JP or myself could get away with. So really adopt your own style and don’t lose sight of the fact that a deposition is really a fact finding exploration. I know certainly very experienced attorneys use 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 as 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 of a corporation or another party. But I think as the young attorney, the best thing to do is just focus on this as a fact finding exploration.
Bethany N.: And for me, I wish that I could be that attorney who was going to jump out at the first question and ask the witness something really controversial, but that style really throws me off. I need a warm up, I need a warm up for myself. 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 dull areas before I jump out with them, with a surprise document or with the most controversial point in the case. So it really depends on 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.
JP Faunes: So true. Be yourself. You’re good enough. And welcome to JP and Bethany’s self-help hour.
Danelsy Medrano: So let’s talk a little bit about hurdles you’ve encountered along the way. So I’m pretty sure it has not been a pretty story the whole way. So let’s talk about your first oral argument. Talk to me about that. How was that experience, if you knew then what you know now, what could you have done better?
JP Faunes: I’m predator natural. I’m just so comfortable that I’ve never slipped, so I’ll say this, 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 to anybody who’s doing it for the first time. You’re going to 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 ping you with questions when you’re a minute in or 45 seconds in and you start getting questions and your brain just like falls into your feet and you’re just not going to get to where you want to go if you don’t really commit early on to memorizing.
Common Mistakes Young Lawyers Make
JP Faunes: Oh, you know what, I just thought of a terrible story,
Danelsy Medrano: Story time.
JP Faunes: Story time with Jimmy Pickles. So, well, that’s for podcast number two. You guys can’t give everything away right at the end of the first one.
JP Faunes: So this wasn’t technically an oral argument, but in my prior life, I was sent, like my third week on the job, to do a binding mediation in a case that was like a terrible case that we were going to lose. And you know, it was like, “All right, we’ll see what you can do, maybe you won’t get hit for $1 trillion.” I walk in and it’s me against this really successful plaintiff’s lawyer, who was a named 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 30 years. I got in there and I was like, I’m going to be a lawyer, today’s lawyer day.
Danelsy Medrano: What did that look like?
JP Faunes: So I was like taking myself so seriously.
Bethany N.: Very awkward.
JP Faunes: These established professionals, they were probably laughing at me, but I came in like all fired up and I was like, “I’m going to win this case. I’m going to convince everybody that I’m right, I’m going to take this back to the office. They’re going to be amazed that I did this.” I lost $162,000 on my third week of practice and then on the way down I took the elevator down with the mediator it was the whole way down. He was just like, “You know what you should do? You should join plaintiffs practice. Look how easy that was for that lawyer to just come in and just crush you at this binding any mediation.” That’s how it all started.
Bethany N.: I think there are a number of things that stick out in my mind in terms of what happened to me early on in oral argument. I’m a very passionate, dramatic person and I think, as a young lawyer, you have to know when is the right time to be passionate and dramatic and when is the time not to be. And usually as a young lawyer, if they’re sending you somewhere, it’s not the time to be passionate and dramatic. So you’re not going to win the case at the case management conference. That’s like rule number one. 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, they said they weren’t vicariously liable for for the doctor. And I remember making a very impassioned plea to the judge and it was a turnoff to him.
Bethany N.: So I think you have to know what is the right demeanor, what is the right tone, what is the right way to present your argument? And that’ll get you far. I think also length of argument is very important. As a young attorney, you’re going to spend a lot of time in discovery court. And the people that do the best are the people that get up there, they give their argument in a few sentences, and they sit down. Those are the people that are going to win the arguments because the judges do not want to hear about it. They don’t want to hear about these squabbles. So it’s important that you’re very precise in your arguments as a young attorney because it’s unlikely that you’re being sent to something that’s that important that you need to 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.
JP Faunes: Yeah, that’s such a good point. And actually, I recently got some advice from one of the named 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 bias, but you know what’s out there. If you have a case on the plaintiff’s side and you think that one of the weaknesses of your case is that the defense is going to argue credibly that your client is exaggerating, that there’s not a lot here. I get worked up, I’m also passionate and overdramatic and all that stuff. So if you can’t reign 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.
Bethany N.: I made the exact same mistake under the exact same scenario and made a very impassioned-
JP Faunes: I’m not saying this actually happened to me, this was hypothetical.
Bethany N.: I’m sorry. Well, your hypothetical scenario absolutely happened in real life. What a coincidence.
Danelsy Medrano: Let’s talk about your first mediation. Can you give me some mistakes you made? Learnings, takeaways. Things you actually know better now.
JP Faunes: Yeah. My first mediation, the mistake I made was losing $162, 000 in my third week of practice. That’s basically, I can tell you about my first trial. That’s a better story. But do you have your first mediation story?
Danelsy Medrano: We’ll talk about that.
Bethany N.: You know, as a young lawyer, you’re not necessarily calling the shots and mediation, but I think what’s really important is that one, the client has all the information. So as the young attorney supporting the older attorney, partner, whoever, you want to make sure that they have all the information, specifically the things that the client really wants to know about. They want to know at the end of the day, how much am I walking away with? So as a young attorney, make sure you have the lien information, make sure you have the information, what are the costs on the file? How much have we spent, what’s the fee agreement say in terms of how much my attorney gets?
Bethany N.: 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 are the fee that I’m going to 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 mediation because we do very high stakes cases, it’s important as the young lawyer that you’re there being a supporting role and that the attorney has all the information that they need so that you and the client can be on the same page and that you can successfully resolve the case.
JP Faunes: Yeah, really good point. Make yourself indispensable. Like Alexander Hamilton did with George Washington. Sorry I saw Hamilton.
Danelsy Medrano: Is there a story behind this?
JP Faunes: I’m obsessed with Hamilton right now, in a bad way. No, but that’s a really good point. Like what you should look to do, not only with the client, but it’s such a good point because you want to be there, particularly for mediations, you’re supporting, usually if you’re a younger lawyer, a more experienced partner, and if you’re going to be helpful in that context, know the file cold in a way that nobody else is going to be able to do. So that when that one weird question comes up from the mediator, says, I don’t really buy this or whatever you say, you have this evidence, whatever it is, be able to whisper to your partner like, “It’s right here. This is the thing.” And let he or she hit a home run and you’ll be the silent hero. That’s great.
Lost My First Trial
My first trial I was I think 29 years old, also with the defense at the defense shop, and I lost, this time I believe $1.7 million
James P. Faunes
JP Faunes: So my first trial I was I think 29 years old, also with the defense at the defense shop, and I lost, this time I believe $1.7 million?
Danelsy Medrano: Damn.
JP Faunes: Yeah, damn. It was a lot of money. So I was sitting second chair to an older lawyer who was close to retirement and was a very, very good, very smart lawyer. But we were up against, actually the attorneys here at Feldman Shepherd who, as the whole world I hope knows, are exceptionally good at their jobs. And it was a death case. It was a horrible drowning case. And I was sitting second chair and I had been going around in circles begging for an opportunity to like just get into a courtroom because that’s what I wanted to do. And this lawyer was great and he was like, “You know what, you can do the opening and you can also cross examine the liability expert.”
Bethany N.: That’s not normal.
JP Faunes: No, he shouldn’t be allowed to do that.
JP Faunes: But the regrets that I have from that trial, we were going to lose money, but the regrets that I have, have to do with not doing more. I could have closed, he would have let me close, I could’ve crossed more people, but it ended up getting me, in large part, a job here. 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 going to get it, and what form it’s going to 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 going to be watching. You never know who’s going to talk about you.
JP Faunes: And Philadelphia is a very small legal community, so just don’t let an opportunity pass you by. Just be ready for it. And then don’t be afraid of it. 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, and if you can cross an expert in your first trial, don’t bring a clicky pen with you and click the pen for an hour and then have one of the jurors ask the bailiff to tell you to stop because it’s embarrassing to everybody. But just for my own consciousness, the expert did say if what I said was true, he would change his opinion. So whatever.
Bethany N.: I think my first trial experience was 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, you’re going to go do this. And then 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 first five years of practice, it was within my first five years, the partner of my firm said, “Hey, we have this great commercial litigation case. It’s about franchises, something or other and we want you to try it.” And it was a bench trial and the client was absolutely nuts and I had negotiated for her a great deal, but it was a family dispute and she just did not want to settle.
Bethany N.: 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 case was just a disaster. There was no way I was going to win this case, but again, going to your point about you never know who’s going to be in the room, I made very good friends with defense counsel through that case or actually I was the defendant, so 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.
Bethany N.: So I think that even out of a 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 would definitely be my most memorable first trial experience.
Danelsy Medrano: To piggyback on that and talking about, you never know who’s going to be in the room. JP, why don’t you tell us about your story about the partners at the firm who you were litigating against and they saw you and they’re like, “Ah great guy.”
JP Faunes: Yeah, it’s the same trial that I was just talking about. All the things that I’ve preached here today, and will continue to preach on the podcast, I tried to put into practice when I was a defense lawyer, which was like be over prepared and like care a lot about what you’re doing and be ready. And I think that I was, and that rang out, as soon as we sat down, the lawyers here at this firm are incredible, and it was obvious right off the bat, I mean we were in voir dire and they had already digested basically everyone’s information. We got back there, and it’s very standard in Philadelphia County, it was the judge’s clerk running with individual voir dire, it was a relatively young clerk too, so there was room there. The partner here saw there’s a chance there to advocate for his client back there.
JP Faunes: And as soon as we sit down and he’s like, “Oh, you know, at least one or two of these are our immediate strikes. We got a person in the panel whose husband works for the defendant.” And I had also, just by luck, seeing the same document and I’m like, “Well, actually, no. They work for this other entity that doesn’t have anything to do with the city.” And the partner wrote down my name, I saw him write down my name and I’m like, “I got him, I’m going to do my best work here.” And then he teed off on me for so much money. And the whole time, it was like a week and a half, and it was John Dodig by the way, and Jason Daria, who are both exceptional…
Bethany N.: And this is not a paid sponsorship.
JP Faunes: No, no. These guys are just really, really good at their jobs. The whole time it was just like, what are you doing? Why don’t you just pay me? Just pay me the case. You’re going to end up losing. Just pay me. You’re doing a great job, but pay me.
Lawyer Nervous in Court
JP Faunes: That’s how really, really talented, exceptional trial lawyers are. They’re just always in advocacy mode. There’s no letdown. Last thing about that trial. We’re about to open. I’m all jazzed up. Like, if Hamilton had been out then, I would’ve been listening to Hamilton 24/7 before the trial. I’m ready. We’re about to open. It’s my first opening to a jury, and I’m just so pumped up and we’re about to do it. Juries and panel, they call them in for openings and I lean over to the first chair lawyer, who I loved and still love. He’s a great guy. And I go, “Man, all right, I’m ready. Let’s do this. Let’s go.” And he goes, “I don’t know, man. I’m nervous.”
Bethany N.: Oh great. JP Faunes: It’s like, cool. Thanks man. I’m going to get up here and just do this thing now. Thank you. But it was great. It ended up working out okay.
How to Handle Opposing Counsel
Let’s talk a little bit about actually that whole experience, litigating against more experienced attorneys and things you can say you’ve learned. Can we talk a little bit about that?
Bethany N.: Sure. I think as a 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’ll be more respectful. I think that as a young attorney, it’s important to present yourself in a light that 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 my-
Danelsy Medrano: ‘Til you make it.
Bethany N.: Yeah, fake it ’til you make it. 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 didn’t want and I just said, “Well, that’s not what the rules say.” You know? That’s not great, but just, yeah, fake it ’til you make it. Assert yourself, exude confidence, and that will lead to success.
JP Faunes: Yeah, I couldn’t agree more with that. I would say that I’ve had… Basically, my entire practice has been against or with older, more experienced lawyers, so I’ve gotten kind of used to playing this role. But it also… My natural proclivities skew towards over-respectful. I’m a “sir, ma’am” type person, which could really backfire on you, actually, now that I think about it. But I always just try to be really, really respectful.
JP Faunes: But just like Bethany said, don’t back down. I think that, particularly in what we do, not only our adversaries but also judges gain a lot respect for you, to the extent that you are willing to respectfully disagree with the position and to advocate for the position you think is correct, but to do so in a way that’s not belittling to anyone, doesn’t…
JP Faunes: I love the “that’s not what the rule says” argument, because it’s not you that’s saying. That’s what the rule says. I love doing stuff like that, like, Oh, you know, it’s not me that disagrees with counsel. It’s the Supreme Court of Pennsylvania. They disagree with what counsel’s saying. There’s a line there to be walked where you can be both a firm advocate but also very, very respectful. I think that at the end of the day, you come out better for it.
Bethany N.: 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 rapport 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.
Bethany N.: These days I go into a 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 at the end of the day, especially as a plaintiff’s lawyer, they’re going to pay money because they like you. If you’re a jerk, if you get into a fight with people, that’s not going to help your client. That’s not being a good advocate for your client. 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 of having a good outcome in the case.
JP Faunes: Yeah. So true. Also, you’re going to take years off your life if that’s the way you practice every single day. I love older lawyers who are just like, “Listen, nobody’s going to jail. Everybody’s going to be okay.” Just be respectful, be nice and it’ll serve you well in the long run, I think.
Danelsy Medrano: Let’s go back for a second and talk again about your first trial.
JP Faunes: Great.
Danelsy Medrano: Your confidence level-
JP Faunes: You’re talking about the one where I lost almost $2 million?
Danelsy Medrano: That’s exactly where I’m going.
JP Faunes: Great. Let’s do it.
Danelsy Medrano: Your confidence is not all the way there. You’re overthinking everything. Anxiety’s kicking in, and then you lose $1.2 million. Then what? How you as a young lawyer, it’s your first trial. How do you proceed? How do you move forward from there?
JP Faunes: I walked to the office in a dark cloud of shame. I was back there in an hour and then Mr. Dodig pulled up and picked 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. That was an exceptional experience for me. I also got to meet a lot of the other partners here at Feldman Shepherd, and that obviously turned out well. I stayed on at my prior job for another year, got a decent amount of additional jury experience, and then when I was ready to leave, they were my first call and it ended up working out great.
Professional Development Tips for Young Lawyers
JP Faunes: 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 by folks here. You can learn from winning, for sure, but you learn way, way more from losing if you’re willing to be sort of no sunglasses, 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 to this podcast, I’m going to hate everything I’m saying.
JP Faunes: But if you can look at yourself clearly and then go and not be afraid to go ask people, “Hey, what would you do?” The first thing that I, if I have a bad result in any kind, if I take a bad dep, if I do whatever, I will go and ask somebody who I respect. Usually Mark Tanner or Dan Weinstock or John Dodig or Alan Feldman, Carol, all these people take amazing deps. They’re all incredible lawyers. I’ll just go ask them, “What would you do different?” The things you learn from that process are gold. I mean, much more than doing well.
Danelsy Medrano: How important is that feedback? We’ll go back to you in a second. Actually removing the ego from the fact that you just lost and all of that and actually going for the learning experience and reaching out to counsel and getting that feedback?
JP Faunes: For me it’s been invaluable. I don’t have any way of learning without somebody… And that was part of the problem with the prior position, though I loved it and I loved the people that I worked with and I loved the work and I loved being constantly on, going from trial to trial. There was no opportunity for meaningful mentorship in the courtroom. No opportunity to learn from people who’ve done it before and played the game at the highest level. You don’t really have a sense of how much you’re in the minor leagues until you see the people who are doing it at the top and just start pinging them with questions constantly.
JP Faunes: I mean, one of the most valuable parts of working here is that I’ve never seen Alan Feldman’s door closed ever. You can just walk in there with the most mundane question and he’ll just give you a straight-up honest answer about what you could do better. I mean, trial lawyers lose. That’s what happens. If you want to be a trial lawyer, you’re going to lose sometimes. If you want to get really good at it, you just need to be able to face that soberly and solicit and take advice from people who can watch you and advise.
Successful Female Lawyers
Danelsy Medrano: Can you actually approach the same question, but you’re a woman in a male-dominated industry, so how do you capitalize from that? You know what I mean? How do you…
Bethany N.: I mean, I think there are a number of different ways you can capitalize on it 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. There are a lot of people in our industry that it’s 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, presenting yourself with other attorneys. Certainly some male attorneys try to bully you or it’s difficult when you go to trial and the only feedback from the jury is that they like your outfit.
JP Faunes: You are a tremendous dresser.
Danelsy Medrano: Style.
Bethany N.: Thank you.
Danelsy Medrano: Fashion, check.
Bethany N.: I think… And there are certainly times that judges have said things to me that were a little off putting. They’ll refer to every male in the room by Mister and then they’ll call me Bethany or we’ll have a defense counsel call me honey. For me, you can’t let those things upset you. You can’t focus on it. Certainly, other women are going to 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. Certainly as a woman, I think there are benefits in terms of presenting your case to the jury and making an impassioned argument.
Bethany N.: You have to look at the pros and not the cons, but be strong, put those things in the back of your mind, and keep moving forward.
What Is It Like to Be a Trial Lawyer?
Danelsy Medrano: Great. Now, and I digressed. Let’s go back to the idea of you just lost your first case. Then what?
Bethany N.: Being a trial attorney sucks, if I can say that. Because I remember as 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. Then your client’s mad at you for something. It’s something you have to get over, and losing a trial never gets easier. I think JP 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 case is. You think you’re winning because you’re doing a good job.
Bethany N.: When the case is over and you lost, it feels terrible. You really question yourself. What was I thinking? What did I do right? What did I do wrong? You question your own judgment. Why did I think that I was winning? Why did I think that the jury was on my side? I think you have to take a step back and just really reevaluate, okay, why did I lose this case?
Bethany N.: I would say nine times out of ten it has nothing to do with you as an attorney. It has to do with a problem, in your case, a problem with your client. Then it goes back to, okay, why did I select this case in the first place? Maybe this is not an issue of me as a trial attorney. Maybe this is an issue of my case selection skills.
Bethany N.: I think that you’re never going to get over losing a trial. You’re never going to feel better. You’re never going to 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’ve never taken in the first place. But it never gets better. It never gets easier.
Bethany N.: I think it’s just you develop the skills to deal with it and you become more equipped to handle losing and to understand and 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.
Young Lawyer Advice
Great. Let’s wrap it up. Let’s go over takeaways, right? Can you each give me three things that you would tell your younger self from mistakes… 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, things not to do.
JP Faunes: Sure. One, how young am I, that I’m talking to? How far do I have to go back?
Danelsy Medrano: Hopefully not 15.
JP Faunes: Okay, yeah.
Danelsy Medrano: But we’re going back to just graduating law school, getting your license.
JP Faunes: Okay, so it’s like, 20, 27. All right, her name is Shauna Mallet. She’s at Villanova Law School.
Danelsy Medrano: Oh boy.
JP Faunes: Go find her. All right, that’s number one.
Bethany N.: What?
JP Faunes: Number two is so much happens and you think that you have a handle on it and you’re going to be this lawyer, that you definitely can be. 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 of 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 something that takes a lot of time. But there’s so much that goes into it that has nothing to do with how compelling an advocate you are.
JP Faunes: There’s things that, like in that mediation I could never have understood the outside-of-the-law-school-classroom factors that went into how a mediation gets to where it is and how it resolves and how money changes hands. There’s just a lot that happens that’s completely outside your ability to understand. Just be open to the notion that you don’t know anything. Be humble in your approach to learning the law and learning the basic skills that you’re going to need throughout your career, and be unafraid to ask for advice and guidance. That would be number number two.
JP Faunes: I guess number three would be do the closing argument, man. What are you scared of? Go. If you get an opportunity to do the closing argument, do the closing argument. If you’re allowed to cross everybody in the trial, just don’t turn anything down out of fear because you don’t… The regrets that I have, and shout out to Swarthmore College soccer, they’re in the Sweet 16 for the NCAA tournament right now. If I could talk to those kids, it would be like, I don’t regret the mistakes, really. I regret the times that I made decisions based on fear or nerves or allowed that to be the controlling factor in doing something. Throw that aside and go with your gut and learn.
Bethany N.: Number one for me would definitely be have the right demeanor, have the right tone, have the right presentation. I think 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, say, defense counsel or the court that I should have made. It’s important to know when it’s the right time to be an impassioned advocate and when it’s not. Certainly as a young attorney, I thought that was all the time. That would be my number one. You’re not going to win the case at the case management conference. Know what your role is and understand what you’re supposed to do.
Bethany N.: Number two would be the importance of mentorship. I really didn’t have that many significant connections as a young attorney that I now realize are vital for the continued success of a young attorney. It’s important that you make connections with more experienced attorneys, partners, both inside and outside your firm because they’re the people that are going to guide you. Those are the people you’re going to go to and ask questions. 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 do. Start early building those relationships.
Bethany N.: 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 first six years in practice. I look back at that and think about how many people could I have met? How many people could I have connected with that really would have changed the trajectory of where I am today? It’s uncomfortable, it’s difficult, but get out there. Make connections, have a drink, loosen up, talk to people, and it will really improve and enhance your career. Those would be my three takeaways for today.
JP Faunes: I’ve got, I’ve got two quick things to close on. One, with respect to Miss Network Nikitenko, if you’re going to see her at a case management conference anytime soon, show up prepared to argue the case, because she’s going to win it.
Bethany N.: Stop.
JP Faunes: Number two, if you are a member of the Philadelphia Bar Association, do the right thing and go cast your vote right now for Bethany Nikitenko to be on the YLD Executive Committee. She’s running. She’s qualified. Go vote for her.
Bethany N.: Thank you for your vote of support.
JP Faunes: I didn’t say I’m voting for you, I’m just encouraging-
Danelsy Medrano: Oh!
JP Faunes: I already did. I already did!
Danelsy Medrano: That wasn’t a paid sponsorship either.
JP Faunes: I already voted for you.
JP Faunes: Great.
Bethany N.: Thank you.
JP Faunes: Thank you guys so much for joining us here on the podcast Feldman Shepherd with Bethany and JP working title, and we will see you next time.
