Reviewed by Brandon Lacy
Originally published in the summer 2020 issue of The Docket, the quarterly publication from the Arkansas Trial Lawyers Association.
I have heard many attorneys remark that law school teaches us to think like a lawyer but does not actually prepare us for the daily practice of law. Like many ATLA members, I was blessed with tremendous opportunities for learning how to practice law at the beginning of my career. After graduating law school, I began my career with a defense firm in Little Rock where I was tasked initially with a heavy load of pleadings-related practice and, once I understood how cases needed to be developed, I was given more responsibility for depositions and courtroom proceedings. Not satisfied with the limited roles I was being given at a defense firm, or with the narrow scope of law to which I was getting exposed, I decided to branch out and work for an attorney with a much broader, trial-oriented practice. There, I learned how to manage and try cases of all sorts.
Although both settings provided an invaluable education, that education was gained, largely, in a trial-by-fire environment. I frequently found myself in situations where I was uncertain what was required, and navigating through those situations required fast decisions and shots from the hip. For the most part, I was able to feel my way through those circumstances, and when I did get in over my head, I was fortunate enough to have some great mentors around me who could pull me out. Thankfully, I was able to survive these formative years without causing any permanent damage. This is not to suggest that I now have all the answers, far from it, but the education and experience I gained during those early years has provided a foundation and comfort level to confront the myriad of novel and unexpected issues that we frequently face as plaintiffs’ lawyers.
It is with that background that I picked up The Plaintiff Lawyer’s Playbook: Insights & Recommendations on How to Prepare for Success in Settling & Trying Cases by Elden Rosenthal. The book delivers precisely what the title suggests: a comprehensive, step-by-step manual for the practical day-to-day development of a plaintiff’s case from intake to trial. This book condenses the years of “hard knocks” lessons and experiences into a guide for attorneys to reference in their daily decisions, and in their development of procedures and systems for incorporation into their daily practice. It guides the reader through those practical lessons that I and many of us had to learn the hard way.
I hesitate to suggest that this is a book primarily for beginning lawyers. Although the author, with forty-seven years of experience, has formed a partnership solely for the purpose of actively mentoring less-experienced lawyers, and although this book is unequivocally a must-read for a beginning attorney, it also includes lessons for even seasoned veterans of this profession. This book not only could have saved me many headaches and sleepless nights had I read it at the beginning of my career, it has taught me a few new things having read it seventeen years in to my career.
The book guides the reader chronologically through the life of a case, beginning with case selection and intake and ending with trial. An example of a lesson taught in the book that I unfortunately had to learn the hard way (indeed, I seem to be learning the lesson anew on a frequent basis), is to only take a case if you like the client. For many of us, primary case-selection criteria include whether we can make money on the case, whether the potential client was a legitimate victim of an unscrupulous act, or whether we can further a broader interest of justice through pursuit of the case. Without question, these are all legitimate case-selection criteria. However, as Rosenthal points out, we should only take cases that we plan on trying, and if we do not like the client, there is a very good reason that the jury will not like the client. If we cannot win our case at trial, then the other legitimate goals–making money, redressing legitimate grievances, or furthering the interests of justice–will not be achieved either.
Another great lesson that made perfect sense to me, but that I have never seen or heard articulated as a hard-and-fast “rule,” is to never try a case without first visiting your client’s home. Rosenthal’s point was that you will notice things inside your client’s home that will trigger helpful clues about how best to present your client’s case at trial. Rosenthal used an example of a medical negligence client dying of cancer whose home he visited and, while there, he inquired about a montage of other women pictured on his client’s wall. His client mentioned that those were the other women in her family–mother, grandmother, aunts, etc.–who had all lived into their eighties and nineties. Rosenthal borrowed the montage for use at trial to demonstrate the plaintiff’s powerful life expectancy had her cancer been timely diagnosed and adequately treated. This theme would have gone unnoticed had Rosenthal not visited his client’s home before trial.
From the mundane tasks that we often overlook because they are not as exciting, such as the preparation of a trial notebook, to the topics we deliberately avoid because they are manifestly unpleasant, such as what to do in the event of potential malpractice, The Plaintiff Lawyer’s Playbook gives the reader a guide for nearly every circumstance that we might encounter. Obviously, you will not agree with every piece of advice. I, for one, disagreed with the author’s recommendation of sending deposition summaries and document indexes to expert witnesses. I have sat through too many depositions where the defense counsel has rummaged through my expert’s file and pilfered through the materials I sent to him/her to purposefully allow the defense counsel to have the benefit of seeing my work product. But at least Rosenthal gave a starting point for consideration, which I think is the more important point. Whether we agree with the recommendation or not, he covers the topics that we need to keep in mind as we prepare our case, and usually sums the topic up with a theme that is easy to remember (i.e., for trial, always remember: “It is your courtroom.”).
Finally, as a practical matter, Rosenthal includes some useful forms in the appendix of his book that an attorney might want to use as a template, such as a protective order or contingency fee agreement. I borrowed some language from Rosenthal’s client deposition preparation letter for inclusion into my own.
Many attorneys would prefer not to learn lessons about their practice the hard way. This book helps the reader avoid many hard knocks lessons, and prepares the reader for the daily practice of law. It should be required reading of any first-year plaintiff’s attorney, and recommended to all of the plaintiff’s bar as a good refresher course as well as a source for new ideas.
The Plaintiff Lawyer's Playbook by Elden Rosenthal