Attorney Sidebar: On Specialization

~Ben L Kessinger, Jr.

Specialization leaves some people high and dry. If their specialty dries up, then what are they going to do? Tax laws change; litigation changes. They’ve gone now to a lot of mediation and arbitration, and there are not nearly as many trials in the courtroom as there were. Now, if a lawyer has one trial a year, he’s lucky.

~Ben L Kessinger, Jr.
Kentucky Lawyers Speak, page 224.

This warning is often taken for granted and ignored by attorneys at their own risk. In the business world, this is called creative destruction. Many of the companies in the Dow Jones industrials many years ago are not there anymore. One day Eastman Kodak owns a photography business, then along came Digital photography. One day railroads rule transportation, and Pullman sleeper cars were the only way to go for long distances.

In our own field, who remembers the king of typewriters, the IBM   Selectric  typewriter with a magical ball in the middle that you could change fonts and easily make carbon copies. Later replaced by the magic of a Wang computer typewriter. The net was gone. Typewriters gave way to television typewriters. Faxes are giving way to email. In court filings are done electronically from a distance. Right now, I am dictating this paragraph using Dragon 6  for my Mac. Not as good as the Dragon program for Windows, but it’s gotten pretty darn good.

Anyone remember when the best continuing legal education was to go to the courthouse and watch the Titans of trial lawyers battle it out?  Or going to Frankfurt to watch Supreme Court arguments to learn the ropes for appellate practice? Well now, there are videos available online or on YouTube to serve as examples for various aspects of litigation. If you want to catch a Supreme Court argument, he can catch it live in the quiet of your own office.

How about when workers compensation laws changed in Kentucky which made it harder and harder to make money as a plaintiff lawyer, and nearly closed down that portion of the defense bar. Specialties came and specialties went. Subrogation has evolved into an entirely different, complicated, and critical element in injury law. IPads have become trial tools working together with projectors, televisions, audio, and more. The video deposition was once VHS,  then a compact disc, then a DVD, and now thumb drive. Contrary to the popular saying that the more things change the more they stay the same. Not hardly the more things change, the more they change and change some more.


Attorney Sidebar: Ten Essentials Important in Your Practice of Law

~ Ben L. Kessinger, Jr.

There are ten essentials that I think are very important in your practice of law.  First, keep current with your expertise. If you’re an expert tax lawyer, be sure that you understand the most recent tax law. Second, watch out for malpractice. If you procrastinate is you let the statute of limitations run on you or you don’t document your activities, you are vulnerable to a malpractice lawsuit keep track of your appointments and the date your pleadings are due. Third, find someone to be your mentor in the first years of practice. After that, you should be a mentor to some younger lawyer. Fourth, have fun in the practice of law. If you let the practice of law interfere with your personal happiness, find another job. Get involved in Bar Association activities where you enjoy the association with other lawyers.

Fifth, be a likable lawyer. A lot of clients want you to be a mean lawyer and you can’t be a mean lawyer. Civility in the practice of law is very important. And when you get decisions that are against you, then don’t blame the judge. You can tell your client, “Maybe we can appeal the case and get a different decision.” Sixth, ethical conduct is a high priority.

Seventh, I would say is priority of communications. With your clients, return phone or other messages. You’ve got to be responsive to other people. Eighth, the economics of your practice cannot be ignored. You must have able secretaries, staff members, and partners who are well-compensated. . . .

Ninth, brevity is a must. Lawyers need to train themselves to be brief and concise in their writings. Judges don’t have time to read long briefs. Last, in trial practice, start out trying to find out what the law is when you first get the case. Find out what the jury instructions would be when they get the case. Prepare yourself day-to-day to get that case ready for trial and have confidence in what you’re doing.

~Ben L Kessinger, Jr.

Kentucky Lawyers Speak, page 224-25.

Attorney Sidebar: Peter Perlman on a Simple Approach to Opening Statements

~ Peter Perlman

I am straightforward and use everyday language. I make a conscious effort to avoid analogies like “the opening statement is like a roadmap” and “the opening statement is like a jigsaw puzzle, and as a case develops you’ll be able to see how the various pieces fit into this puzzle.” I prefer to use a direct approach and to simplify complicated or technical issues as much as possible. The roadmap and jigsaw puzzle references suggest that the case is complicated, and the average person is likely to be turned off by complicated explanations

~ Peter Perlman, “Opening Statements”, ATLA Press, 2007, page 41.


In this small paperback, renown trial attorney Peter Perlman, addresses several of his opening statements by annotating them with comments and analysis.  Revelations into the inner workings of the law are rarely this specific and even more rarely memorialized in print.

This particular case dealt with a farm employee’s injuries when his arm was trapped in a corn-picker that had little to no modifications in design for 50 years.  However, the guidance of talking like a person, a real person, is critical.  Use simple terms if possible and don’t waste time on a long windup about roadmaps and puzzles which talk down to them (and most think this is adding clarity when it is potentially insulting, and even more insulting if involving matters within their common experiences and understanding such as automobile collisions or slip and falls.