Pens for Lawyers

I write a lot.  Computers are great, but there’s just something about putting pen to paper that is really satisfying.  Because I spend so much time putting pen to paper, I am constantly on the lookout for good day-to-day pens.  I’m not fond of fountain pens, like I’m not fond of riding horses around town, but I do really like a good rollerball or gel pen.  I try lots of pens, and I’ve come across one recently that I really enjoy using. It’s the Uniball Signo .38 tip pen.

What so nice about this pen?  It writes smoothly, but has a thin line and doesn’t skip. And it’s comfortable in my hand for long stretches of time.  It’s become my go-to pen for notes.  I like the dark blue, but it comes in a variety of colors.  It’s also not expensive so it’s appropriate for daily use.

I used to think any old pen was fine, but I’ve become just a bit more picky about them, just because a good pen can make a big difference after you’ve been writing for a couple hours.

I don’t get anything from the company; I just like the pen a lot.

Let me know in the comments any other pens you like.


Evidence and Advocacy

Many trial advocacy books focus on things like juror psychology, theming, framing, sequencing, point of view, and other aspects of presenting your case to the jury.  The focus paid to all these things often demotes the most important part of the trial, which of course is the presentation of the evidence.   That is not to say that the way that evidence is presented is not important, but it remains true that juries do decide cases based on the evidence presented.   Sometimes when I tell my students and other lawyer that I believe the evidence presented is the most important part of a trial, they resist and tell me that the recent discoveries in jury psychology make the evidence presented less important.

But I continue to believe that cases are decided on the evidence presented, so I was glad to read recently this line from Moe Levine:  “if you win your case at all, it’s going to be by the evidence you present and by not making yourself obnoxious.”  I especially like the latter point. This statement sort of captures what a trial lawyer should be doing in as few words as possible.  I am not deifying Moe Levine.  I would not try to duplicate his methods for myself, but I do think someone of his experience deserves close attention.  And his thoughts are in accord with the psychological studies that have identified the evidence as the most important predictor of jury verdicts.

So, before you pick up a psychology book to prepare for your next trial, consider first paying extremely close attention to the evidence and making sure you have it ready to present at trial.


Don’t Eat The Bruises

You could fill a large bookshelf with books on trial advocacy.  Yet the number of civil trials seems to be on the decline, and has been for probably a decade or more.  Could it be that there’s an inverse relationship between the number of trial advocacy books and the number of actual trials lawyers are handling?  Are we reading books and going to seminars instead of trying cases?  Judging solely by the number of trial advocacy books out there, I wonder.  And many of these books are written by people who have never had to talk to a single juror.

Yet there are gems out there.  An excellent book I am now finishing is Don’t Eat The Bruises by Keith Mitnick. He’s a very experienced trial lawyer with Morgan & Morgan.  There are plenty of books by psychologists, trial consultants, and others that attempt to tell lawyers how to try cases successfully.  But Mitnick is a practicing lawyer who has tried tons of cases of all sorts.  That alone makes him worth listening to.

He has a whole lot of good advice for lawyers trying cases, particularly for those who try cases in tough, so-called “conservative” venues.  His concluding chapters on damages contain some of the best approaches to arguing damages that I have ever seen. He also reveals a “note card” that is as low-tech as it is effective.  Also, his approach to voir dire seems to me to be very effective.

If you want a start to finish book on trial advocacy by a lawyer who’s been through the battles, you can’t do better than this book.

But even better than that, get out there and try some cases!

Book suggestion for trial lawyers

I have and likely always will be fond of those who don’t follow the crowd, those who seek excellence above popularity.  And I especially enjoy reading books about those who earn real accomplishments in their own unique way.  That’s why I like reading Rick Friedman’s books.  His latest book, Becoming a Trial Lawyer (2d edition), is a gem.  It’s full of great advice from Friedman, who’s had a long and successful career as a trial lawyer.  One of his pieces of advice is that lawyer who want to become trial lawyers should avoid rigid devotion to any formulas and dogmas.  They should instead absorb the many different suggestions of the “one way” to do things in a courtroom and use them in their own way that feels right to each individual lawyer.

Much of the advice on trial practice these days takes the form of “here’s the one right way to be a trial lawyer.”  Some of that advice even comes from people who have never set foot in a courtroom. I have always been skeptical about any dogmatic approaches to things as complex as jury trials. And I appreciate Friedman’s advice to think broadly about how to be effective, and his rejection of any formulas.  Trials are dynamic events, and no one way can capture their complexity.

The one thing I am sure of is that trying cases – lots of cases – and attentively examining your own performance is an effective way to become a better trial lawyer.  Friedman’s book is full of wise advice, but remember the author’s own admonition to think for yourself even as you absorb his advice.

A Cheaper Way to Get Medical Records

One of the common headache-inducing problems that injury lawyers face is obtaining medical records at a fair cost and in a reasonable amount of time.  But there is a way that lawyers should know about to obtain records inexpensively, and quicker than the traditional route in many cases.

The HiTech Act provides a way to obtain electronic medical records, and it lays out a procedure for obtaining them.  We are using this method now to obtain records, but we often meet with resistance from medical providers or their contractors.  It will likely take a dedicated effort by lawyers to make providers aware of the HiTech requirements and to obtain their compliance.

A very good resource for this is Paul Scoptur’s website,  The HiTech Act’s requirements and forms are available at his site as well.  He has very generously made them available and they are very helpful.  Please let us know if you are successful in using the HiTech Act to obtain records and we can share your experiences with other lawyers.