Washington Lawyer - January/February 2020 - 40

ON FURTHER RE VIEW

TRIAL LAWYERS,
AGGRESSION
& HUMILITY
By Lloyd Liu

hat makes a good trial
lawyer? How do you
become an effective trial
lawyer? These are pretty basic
questions that are often answered
in opaque terms: thinking on one's
feet, having "the fire or not,"1 or
being clear. I'm sure others can
think of a dozen different descriptions. All of them are true, but these
observations aren't descriptive
enough, leaving some of us to
divine what these ideas mean in
practice. My objective in this series
is to help unpack some of this tacit
knowledge by talking to seasoned
trial lawyers. Any failings to better
explain these qualities are mine.

Bill Coffield, a partner at Berliner Corcoran
& Rowe LLP, has been a trial lawyer for over
30 years. If you look him up, you'll see he has
represented clients that you would recognize,
including high-level government officials (some
from the White House and U.S. Congress) as
well as corporations, corporate directors, and
officers of major foreign and multinational
companies.
I had the chance to talk with Bill about how
effective trial lawyers are able to regulate their
own behavior and better manage their biases
and weak spots. We started the conversation
discussing the late and incomparable Jake Stein.
I'm not sure Jake needs any further introduction. He passed away last year, and his obituary
is a starting point to understanding his legacy
in the trial community.2 Here's what Bill had to
say about what made Jake effective:
Jake was always very practical. He was
charming, and he had full command of the
facts. He didn't get rattled, and he would kill
you with kindness. He wasn't a combative
kind of guy, and early on, when I was practicing law, I noticed that.
Watching both sides, Bill learned that there
were lawyers who got very combative early
on, and there were those who didn't and were
"methodical about how they asked questions
and knew the record very well."
Lawyer temperament affects jury perception.
"When someone gets combative, it's just a
natural human reaction: fight or flight. Even
if you're sitting in a jury box, this affects the
way a juror is processing this information," Bill said.

40 WASHINGTON LAWYER

JANUARY/FEBRUARY 2020

There are instances where aggression is necessary, Bill offered, but "coming right out of the
box beating up a witness doesn't work 90
percent of the time. ... There comes a point
when the jury wants you to push back. But
it's only after the witness has clearly crossed
the line."
Bill's perspective echoes a story about a prosecutor who always started with Exhibit B. When
a judge once asked him where Exhibit A was,
he pointed to himself and said, "Your Honor,
I'm Exhibit A." It's a cute story and almost certainly apocryphal, but it nevertheless makes
its point: An attorney's temperament sends an
important message. There's a bit of a spectrum,
however. On one end, there's the attorney who
doesn't have enough insight to modulate his
behavior, and on the other, the attorney whose
mannerisms come across as too studied, too
constructed.
But coming back to Bill's point about aggression. If deploying aggression early is a bad idea,
then why do we continue to see attorneys
approach litigation that way? Bill's thoughts
on this: "Sometimes it's just a person's personality. Sometimes people are just pre-wired
to do that. I think they convince themselves
that if they lose a case, there was another
reason why."
Bill's observation prompts us to think about
how we analyze our own tactics and strategies. Embedded in his response is a thorny
issue about identifying cause and effect in trial
and confusing correlation with cause. You
might be successful because you have

Washington Lawyer - January/February 2020

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