During the first week of law school you are indoctrinated with the concept that you can only understand the law if you read and understand the written decisions of judges. This is because, under the common law, the principle of stare decisis is the bedrock of all knowledge. In law school this means many hours reading cases and preparing digests of specific rulings — known as holdings — and the reasoning behind them, as well as how to differentiate dicta, which is that part of the decision that is not relevant to the holding. One of the teachings in law school is that there is no substitute for hard work and the members of the Law Review, which is the most prestigious student group with the highest grades, consisted generally of those students who studied the most.
When I started my own firm, I initially focused on new issues and representing companies raising money. But the stock market went into a rapid and long decline. Some of my clients turned to me and asked me to defend them in regulatory enforcement actions and to handle litigation. As a one-person firm competing against large Wall Street law firms, I realized that hard work was critical to the survival and success of my nascent practice. Fortunately, Westlaw was a new legal research product which enabled us to compete. We were now able to do a much more comprehensive search. We also found that in reading the cases we developed new threads and ideas for further research.
But research is only the beginning of your hard work. In litigation, you need to spend the time and energy to develop an initial strategy. Two of the tools we use at my current firm are 1] develop a case plan at the outset, which is continuously revised and expanded during the lifetime of the matter, and 2] a weekly plan for what needs to be done the following week by the responsible partner, the associates, and the analysts.
Another tool I use is what I call my instant memo file. When I have an idea, I dictate it out, as well as what needs to be done to develop that idea, and I immediately put it into the file for that matter. The case team also meets periodically to discuss long-range strategy and further ideas that need to be pursued to figure out how to win the case or successfully defend our client in a government regulatory matter. Preparing for this type of meeting can involve substantial work because you need to organize your thoughts and ideas based on the legal and factual research that has been have done.
Reviewing and analyzing documents to be produced by your client for privileged materials and reviewing those produced by opposing counsel and other parties for “hot documents,” can be extremely time-consuming, but it is critically important.
Working hard also means working smart. Artificial intelligence has become an important research tool in cases where a substantial amount of documents is produced. It enables us to more effectively and efficiently conduct documentary review and to set up a program to enable us to easily locate key documents. Although this involves a significant expenditure of money, if the client is able to pay the costs of the third-party vendor, in the long run you get a much more comprehensive and reliable document search at a lower overall cost. An integral part of AI legal research is not only to initially develop a plan, but then to use samples to modify the research plan and search terms to make the review more effective.
Hard work, organization, and planning are critical in producing documents to be filed with the court or administrative agency. I always find preparing an outline and drafting the papers to be an ongoing and cumulative process. You cannot simply draft perfect papers in one shot. After you do a rough outline, in almost all cases there is more research to be done and the need to review the documents you have available to you. Once you have prepared a draft, you need to send it out to your client, expert witness, and possibly others for their review and comments. Once these comments are received and analyzed, you need to revise your drafts. Each time a draft comes back I try to take a fresh look and often make substantial revisions. It is hard work but it must be done to end up with the best product possible.
At my firm we have a unique procedure for filings. The attorneys have to be done with their writing and revisions 24 to 48 working hours before the papers need to be filed to enable the analysts to complete the filing process, which is time consuming and detail focused. This includes, among other things, a line edit of the text to make sure that everything is clear, properly spelled, and grammatically checked. It also involves a fact check, including checking that the exhibits or referenced documents are accurately described in the text. It also involves checking that the legal citations comply with the Blue Book and applicable state style guide.
The end product of a well thought out, well-argued, and winning product is the result of hard work by a number of people at your law firm.
Charles Hecht is an entrepreneurial lawyer who had his own firm for 39 years and recently joined Balestriere Fariello as a partner. He specializes in innovative solutions to complex litigation, arbitration, and securities transactions. He values teamwork, which is one of the reasons why he joined a New York City boutique law firm. He and his colleagues represent domestic and international clients in litigation, arbitration, investigations by governmental agencies, and securities transactions. You can reach him via email at [email protected]