Guest Chapter 3
Name: Kenzo Kawanabe
Current Position: Partner at Davis Graham & Stubbs LLP
Legal Practice Area: Litigation and trial. Fellow in the American College of Trial Lawyers and instructor at the National Institute for Trial Advocacy
Law School and Year: Georgetown University Law Center, 1997
My Background
I am a fourth generation Coloradan from the rural San Luis Valley in southern Colorado.
My great-grandparents on my father's side of the family immigrated from Japan to California and then to southern Colorado to farm the land. Because they came to Colorado in the 1920s, they did not suffer the injustice of the internment camps during World War II. My grandparents on my mother's side, however, were not so fortunate. They were Japanese American citizens living in California who were forced to leave everything to live in an internment camp in Arizona, simply because of their race. My family's story is a horrific example of the failure of the Rule of Law, which motivates me to uphold the Rule of Law in my practice and pro bono work.The Legal Profession Needs You
The Rule of Law is a cornerstone of American society, and is designed to apply equally to each of us, ensuring fairness and justice. But “Rule of Law” are simply words, only meaningful if people uphold them. Lawyers are responsible for upholding and enforcing the Rule of Law, and American society needs you now more than ever.
We have a global access to justice crisis. The Rule of Law only works when everyone has access to a fair and just system, otherwise, the system risks failure. Recently, the Institute for the Advancement of the American Legal System and the Hague Institute for Innovation of Law (HiiL) conducted a study that shows that this civil justice crisis exists in the United States.1 Lawyers improve access to our system of justice. In my pro bono work, I have represented refugees seeking asylum, poor school districts in desperate need of equitable funding, and blind tenants in their landlord/tenant dispute.
I know that my legal representation made a positive difference in these cases. Whether you enter public service or private practice, make it a point to help people access our justice system.Additionally, the legal profession struggles with diversity, equity, and inclusion.2 Having lawyers from, and working in, our various and diverse communities betters our justice system and promotes the Rule of Law. I encourage you to get out of your comfort zone. Work to understand and build bridges with communities different from your own.3 You and our legal profession will be better for it.
Lawyer Skills
There are certain fundamental skills4 that allow newer lawyers to succeed regardless of legal practice. Based on my experience, character is at the top of this list. To be a good lawyer, you must have integrity and a high level of trustworthiness. This comes in various shapes and sizes, but ultimately, it is about honoring your commitments including to our professional ethics. Discussing character and integrity in platitudes is easy, but what do you do when you believe your client is not being truthful? Or when you find that harmful document or adverse case? Let your moral compass and our profession's oath5 and ethics rules be your guide. And remember, your reputation is critical to your career.
In addition to character, other skills include work ethic, empathy, and the ability to juggle (e.g., handling numerous cases and responsibilities at the same time). Obtaining work experiences prior to and during law school help you establish these foundations. Teamwork is a must as I do not handle cases or go to trial alone. Having experience on teams (e.g., athletics, nonprofit board, or committee work, etc.) helps establish this skill.
Litigation and Trial Skills
In litigation and trial, regardless of type of law, there will be numerous skills that you need to develop and master. Find mentors who will help you prepare and then evaluate you before, during, and after each task.
Mentorship is key to your success in any organization, as mentors teach you the necessary skills while guiding you through the politics of your particular organization. Work to find and cultivate relationships with these mentors. There are also various organizations (e.g., National Institute for Trial Advocacy), which teach many of these skills through repeat performance and evaluation. Learning new skills is a difficult and challenging process. Have a growth mindset, and analyze your performance with the help of your colleagues. Have the humility to understand that you can always be better.In litigation, you will need to gain experience and training in a variety of tasks. At the end of this guest chapter is a checklist of experiences that you should eventually obtain over several years. There are also a few key skills that are worth emphasizing.
Write, Write, Write
One of the most important skills in litigation is writing, which can also be one of the major inconsistencies in new lawyers. You become a better writer through practice and mentorship. While in law school, join a journal or obtain externships which involve writing (e.g., working for a judge, appellate lawyer, etc.). Apply for a judicial law clerk position after law school. I was fortunate to have clerked for the Honorable Chief Justice Mary J. Mullarkey of the Colorado Supreme Court, who was the first female in that role. During my clerkship, Chief Justice Mullarkey explained her legal reasoning and made me a better writer. She helped me to understand that her writing should be clear so that the parties and practitioners understood the legal reasoning in the Court's opinions, which serve as binding guidance to lower courts on how to apply the law. Your goal is to ensure that your legal brief is well-researched,6 organized, clear, and persuasive.
Be a Storyteller
Regardless of the complexity of the case, human beings are wired to communicate through stories. When you are in trial, your job is to tell your client's story in the most persuasive way possible.
You know the facts and the law, and you must present them in a story that is relatable for the jurors. Too often, new attorneys “think like a lawyer” to the exclusion of their common sense and their own experiences including notions of fairness. Do not underestimate the power of your own life experiences. Be genuine. Jurors will relate to who you are, not someone you are pretending to be.Additionally, a lawyer must develop empathy—not only sympathy—for the client's circumstances. If lawyers do so, they are better able to solve their clients’ problems. Push yourself to leave your comfort zone and obtain new experiences. This includes learning about and assisting communities with which you are unfamiliar. These experiences empower you with empathy (in addition to becoming a better person), and you will be better able to relate to clients and jurors who often come from backgrounds very different from your own.
The best way to obtain trial skills is through experience in the courtroom. For newer attorneys, courtroom experiences may be hard to obtain. Perform pro bono work, which allows you to obtain trial skills in addition to helping the indigent and improving access to justice.7 I handled my first court argument in a pro bono criminal case, and obtained invaluable experience working on refugee and asylum matters.8
Be Happy
Finally, check in with yourself as to your happiness. Litigation and trial are hard. The struggle will make you better, but evaluate—and consistently reevaluate—whether your job brings you happiness. A law degree presents so many different opportunities, and life is too short to be miserable. I am fortunate to have had a fulfilling career to this point. I wish you the same.
LITIGATION/Trial Skills9
· Client Relations
o Communicate with clients regarding:
§ Goals and strategy
§ Budget
§ Case status
§ Discovery and trial preparation needs
§ Settlement
· Investigation and Discovery
o Litigation hold
o Collect relevant client documents, witnesses and case facts for strategic presentation
o Supervise document review and prepare privilege log
o Draft initial disclosures
o Draft written discovery requests
o Draft responses to written discovery requests
§ Gather and prepare documents in response to written requests for production
· Case Analysis and Management
o Develop case strategy
o Handle day-to-day management of small and medium-sized case
o Supervise junior attorney on a case team
o Handle day-to-day management of large-sized/complex case
o Prepare case plan and budget
§ Oversee compliance with budget
o Prepare research memoranda
o Develop proficiency with electronic litigation tools (i.e., document databases)
o Draft a scheduling or case management order
§ Negotiate resolution of case management issues with opposing counsel
o Prepare for and handle mediation
§ Act as lead counsel in negotiating a settlement in simple case
§ Act as lead counsel in negotiating a settlement in complex case
§ Draft settlement agreement
· Drafting Litigation Documents
o Draft demand letter / response
o Draft a complaint
o Draft an answer
o Draft a removal petition
o Draft discovery motion
o Draft simple motions/response to simple motions
o Draft a motion to dismiss/response to motion to dismiss
o Draft a summary judgment motion and supporting brief/response to MSJ motion
o Draft complex motion/response to complex motion
o Draft appellate briefs
§ Present appellate oral argument
o Prepare key pleadings, depending on your practice (e.g., class certification, patent infringement contentions, etc.)
· Depositions
o Prepare for and take deposition of peripheral fact or client witness
o Prepare for and take deposition of pivotal fact witness (e.g., 30(b)(6) witness)
o Prepare for and defend deposition of client witness
o Prepare for and defend 30(b)(6) deposition
· Experts
o Locate, interview, and retain expert witness
§ Work with expert witness
o Prepare for and defend an expert for deposition
o Prepare for and take an expert deposition
· Courtroom
o Prepare for and handle scheduling conference
o Prepare and present argument at hearing for a simple motion
o Prepare and present argument at hearing on a complex/pivotal issue
o Conduct direct and cross examinations of peripheral witness in a hearing or trial
o Conduct direct and cross examinations of pivotal witness in a hearing or trial
o Conduct direct and cross examinations of expert witness in a hearing or trial
o Assist in trial preparation and second chair trial or arbitration in simple case
o Prepare for and act as lead counsel at a bench trial or arbitration in simple case
o Prepare for and act as lead counsel at a jury trial in a simple case
o Assist in trial preparation and second chair complex trial or arbitration
o Prepare for and act as lead counsel at a bench trial or arbitration in complex case
o Prepare for and act as lead counsel at a jury trial in complex case, including:
§ Jury selection (voir dire)
§ Opening statement
§ Direct examinations
§ Cross examinations
§ Experts
§ Dispositive motions (e.g., Rule 50)
§ Closing statement
o Experience the suspense of watching the jury enter the courtroom, as you await the verdict