It is officially autumn in these parts. In the Midwest, it is more properly called Fake Fall, the season f/k/a Indian Summer. It is a dangerous time of year for lawyers. If we set out a suit to wear at night, changes in weather may have made it a horrible choice by morning. Some of us have nothing but horrible suit choices, weather or not, so we notice it less.

More pleasantly, it is the time of year when arguments have moved from politics to football. I grew up in Oklahoma and your favorite college team was given to you at birth. Barring some act of God, that is the team one roots for until death. If great-great grandad rooted for a certain school the rest of the family would follow suit. Favorite teams are family favorites as well. I try to explain that to people from more sane parts of the world much like the Hatfields try to explain why the McCoys are such jerks. It is completely arbitrary of course. Not too much different from political parties. At least we have tailgate parties for football.

Just as the seasons change, I have had some personal changes as well. I needed new glasses and had my annual eye appointment. Either old man glasses are back in style or I need to go to a new doctor as every pair she had for sale made me look old.

My wife was a bit dinged up this week so I tried to make dinner. I bring food home from restaurants with some regularity but evidently that does not qualify as making dinner. My wife is an excellent cook and the kitchen is her artists’ studio. My kitchen skills are somewhere between incompetent and true menace. When all was said and done, I had destroyed the kitchen in a fashion that only a professional vandal could match- not an amateur or apprentice vandal, a master vandal from the local vandal’s union. I got mashed potatoes on my socks, and both were brown. My wife pretended it was not that bad but I know when I am being judged with charity.

Usually when I have been judged with charity, it was done by someone in a black robe. Very young lawyers get judicial charity because they don’t really know what they are doing and very old lawyers because they used to know but can’t remember. Those of us in the middle take our lumps.
I was visiting with a defense lawyer friend at the courthouse. He had hired a couple of new associates and shared his philosophy that he tries to hire athletes when he can as the mindset of an athlete translates well to being a trial lawyer. Both require preparation, discipline and practice. Learning to deal with losing is more critical to success than is winning.

He was absolutely right and he looked surprised when I told him so, but that I didn’t need a philosophy to hire a trial attorney anymore than I need a philosophy to hunt dinosaurs. We are a dying breed. He nodded.

A retired judge wrote about the decline of trials and trial lawyers. This is just as apparent outside the courtroom as in it. A trial lawyer, he says, knows not just what to say in court, but what not to say. He laid the blame for much of the discourtesy between lawyers at the tombstone of the trial lawyer. I am not willing to go that far, but his experience is much broader than mine.

A trial lawyer is not the same as a litigator. A trial lawyer takes every step with a jury in mind. A litigator knows that most cases are resolved by negotiation or mediation. The chores for trial preparation and informal resolution look the same, but the approach is very different. This translates to depositions, motion practice, and so on. A litigator has boxes to check on a prep sheet, with no task more important than the others. A trial lawyer can identify which fights are not worth fighting and which hills are worth dying on. I suspect that litigators will make some of the same discriminations when they completely replace the trial lawyer.

I fantasize that litigators have less stress than trial lawyers. The nuances in their approach are not as critical. Taking an opposing party’s deposition for trial means not just learning that person’s story but assessing how it is told and how the witness comes across. Both types of lawyer hope for a “gotcha” moment that rarely occurs, yet we prepare and plan for it. Like trials.

I like to think my stress level is lower than it used to be. At this stage of my life, I am unlikely to evolve my skills to be more litigator, less trial lawyer. And to my poor wife’s chagrin, I will never be a kitchen magician. I can probably do a better job of cleaning up my messes though, which will at least lower her stress level.

©2018 under analysis llc. under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. Dinosaurs didn’t need to cook either, they just ate big stuff. Comments or criticisms about this column may be sent c/o this newspaper or directly to Under Analysis via email at farris@farrislaw.net.