By: Janet Strevel Hayes
“Preserving Issues for Appeal” – That was the topic I intended to cover for this month’s Practice Tips. Rooted in rules and guidelines, the topic lent itself to compartmentalized bullet points with “tips” for the savvy practitioner of the law. Arguably, it would have been perfect for this column. But as I began writing, I was haunted by the reality that ChatGPT could probably generate those same tips. After all, it was about this time last year when AI passed the bar exam.
I then began pondering (squirrel!) whether there are “practice tips” that transcend a computer’s legal ability. And just like that, my mind (and therefore this column) spiraled into a reflection on the tips that have been most meaningful in my practice. My new working theory is that a computer may be a “good” practitioner of the law, but elements of humanity are required to move from “good” to “great.” Below are some of the real practice tips I learned from the “greats” I have encountered along the way. And, at least for now, those tips can’t be fully replicated by artificial intelligence.
Creativity: As a baby lawyer, I watched John King and Dick Krieg begin the defense of any given case by covering tables with books and researching the law. But learning/confirming the applicable statues and case law was merely a launch point. The magic happened afterward – as they pontificated, debated, and ultimately created unique arguments and strategies to wrap those legal protections around the specific facts presented by their clients. It was more art than science – an approach that forced consideration of human reactions and human emotions. They demonstrated that the law is not always where the argument ends, but it may be just where the argument begins. Through their creativity, they opened the door for new thoughts and ideas. Tip #1: Good lawyers learn the law and follow it while great lawyers learn the law and lead it.
Cognizance: Dennis Jarvis was one of the greatest gentlemen of the law I ever knew. He differentiated himself with is kind demeanor and his intrinsic ability to hear what was not said. Ever present and ever aware, he noted once that lawyers tend to overlook the obvious. For example, he once advised me: “Look at the deponent’s ands during a personal injury deposition – were they calloused? Had he been working?” Dennis also demonstrated he art of disarming congeniality. I watched him argue the intricacies of a complex statute with a judge and immediately exit the courtroom to have an equally passionate exhcange with a janitor about Grainger County tomatoes. It is impossible to measure the impact of his ability to recognize his surroundings and graciously adapt, but I would argue it was a quiet skill that undergirded his tremendous success. Tip #2: Good lawyers strive to stand out, but great lawyers excel by fitting in.
Concern: Lawyers are called counselors for a reason. While trained to argue positions, great lawyers answer a calling to give advice. Perhaps none was better than East Tennessee legend, Don Paine. While his knowledge of the rules of evidence was incredibly impressive, the personal concern he showed for those around him was his legacy. As a young lawyer, I (like many others who will read this) called him frequently with questions about law and life. Despite his demanding schedule, he always dropped everything and led me to believe he had just been waiting for my call. He cared, and his concern for his clients and others in the legal community set an example that elevated our local bar. Tip #3: Good lawyers tell you what they know while great lawyers show you that they care.
Contentment: Practicing law can be grueling, heartbreaking, and demoralizing. So many of us are prone to fixate on those negatives. Not Linda Mowles. If you ever had a case with her, you know she had a brilliant legal mind and fought zealously for her clients. But Linda never let the demands of her practice eclipse her joy in life. Defeats were opportunities to learn and improve. Mistakes were simply obstacles to overcome. In a culture of ruthless hurry, she was steadfast and methodical. Perhaps she was stronger because she never limited her self-definition to her legal accomplishments. Watching her, I observed that the ability to be calm in the midst of a storm is, in a strange way, a legal superpower. Tip #4: Good lawyers try to calm the storm, but great lawyers are the calm in the storm.
So, if you want a refresher on “preserving issues on appeal,” I bet your computer can give you some semi-reliable guidance and generate a great checklist. Look there. But if you want real tips on improving your practice, look around our bar. Legal greats blazed this trail we are walking, and some legal greats currently walk alongside us. I am convinced they are the ones who can teach us the most.
Read the full article in the March issue of DICTA Volume 52, Issue 3 on page 6.