'Like Nike's Slogan': Veteran litigator has some advice about trying cases—'just do it'
Daniel Small spoke to the ABA Journal about his latest book,"Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers," which was published by ABA Publishing in February.
After more than five years as an assistant U.S. attorney, followed by more than two decades in Holland & Knight’s litigation group, Daniel Small often travels around the country, giving presentations about trial practice and preparation.
His talks frequently draw on his real-life experiences, which include prosecuting government officials and mob figures, defending the former longtime governor of Louisiana, and a short-lived representation of a man who killed his ex-wife after appearing on The Jerry Springer Show.
Despite having authored several books, including the ABA-published Preparing Witnesses: A Practical Guide for Lawyers and their Clients; Letters for Litigators: Essential Communications for Opposing Counsel, Witnesses, Clients, and Others; and Going to Trial: A Step-by-Step Guide to Trial Practice and Procedure, he didn’t think to write about his various trials until his wife brought it up approximately two years ago.
“She said, ‘You have all these great stories and lessons from your trials. You should write them down,’” says Small, a Holland & Knight partner based in Boston and Miami. “I was skeptical at first, but I came to really enjoy the process of remembering and thinking about these cases.”
Small spoke to the ABA Journal about his latest book, Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers, which was published by ABA Publishing in February. Responses have been edited for clarity and brevity.
Plenty of trial lawyers have written books or memoirs about their careers and cases. What separates your book from the others?
All trial lawyers learn by doing and watching. We all learn from each other. My hope in writing this book was not just to tell stories and talk about these great cases, but to tell stories that had a point and might help people think about how they try cases. That’s the key. It’s not ‘These are my war stories.’ It’s ‘These are the lessons I learned.’ Some are screwups. Some are things that went well. Some were done intentionally. Some were lucky breaks. All of them allow people to learn something. We talk about practicing law—I don’t think there’s any area where that’s more appropriate than in trials. Hopefully, this book is an opportunity for people to learn and grow as trial lawyers.
In your book, you talk about defending Edwin Edwards, a former Louisiana governor who had a larger-than-life persona and was convicted of racketeering, extortion, money laundering and other federal crimes in 2001 and served 8½ years in prison. What did you learn from that engagement, and how did you handle a client like that?
That was an extraordinary case and figure. Edwin was a legend, so the first challenge was trying to pick a jury. The polling we had showed very clearly that almost no one in the state was neutral about him. They either loved him or hated him. If a prospective juror said they had no opinion about him, we wondered if they were telling the truth or they had lived under a rock. When it came to the trial, Edwin was a great politician and orator and a good trial lawyer. Ceding control of the most important moment in your life was very hard for him. He had a strong personality. I have a strong personality, so it was interesting at times. I certainly learned a great deal.
Some of the cases you write about involve prosecutions of mob figures or corrupt officials. What are some lessons you learned in those cases?
The first thing is you have to take the law out of it. That’s the case with any trial. You don’t want to make it about the law. You want to tell a compelling story. Trials are all about storytelling, and to be a good trial lawyer, you have to be a good storyteller.
For instance, we tried a [Racketeer Influenced and Corrupt Organizations Act] case in Georgia—this was soon after the statute went into effect, and the judge didn’t know much about it and didn’t seem to like it. He came close to dismissing our indictment. But we got to trial, and by telling a compelling story—namely, detailing how these officials had been corrupt—you could see the judge start to understand what was happening. By the sentencing phase, the defense lawyers thought they had the judge on their side. But instead, he imposed the maximum sentence.
Obviously, trial attorneys aren’t the only storytellers in court. The media might be there too and have their own stories to tell the public. In cases like that, how do you protect your client’s interests to make sure they get a fair trial?
The common saying is, “You don’t try a case to the media.” The problem is some people take it too far. If you represent a high-profile person or you have a case that has broad implications, then you have another audience you need to think about. That includes thinking about what you say in open court, what you say in hearings and what you say to reporters. The ultimate example is the grain elevator [explosion] case. It was my first big case. I had no business being lead counsel. I was two years out of law school, and both defendants had second chairs with more experience than me. It was a monthlong trial, and we ended with a mistrial, which was disappointing. But that case had one of the greatest impacts on people’s lives. It really woke up the grain elevator industry and forced them to change for the better.
What advice would you give to a young trial attorney just starting their career?
I was extraordinarily lucky to get thrown in to the deep end on a number of cases that I probably had no business being involved in. What I say to young lawyers is work hard to find opportunities to get on your feet. I don’t care what it is. Pro bono work is wonderful—it’s an important thing to do, and it also gives you an opportunity to get on your feet. I spent six weeks in traffic court. I was on my feet every day, reading files and questioning witnesses. It was great experience. It’s like Nike’s slogan: Just do it. Second to that is watching. Courtrooms are open, so if you have a few hours, go watch a trial.
