What It Means to be a Defense Attorney - David N. Allen

24 May 2021 11:22 AM | Lynette Pitt (Administrator)

by David N. Allen

When President Smith asked several folks to write a column about what it means to be a trial lawyer, I thought why do any of us need to do this? After all, no one has ever done a better job of summing up this topic than Sammy Thompson in his valedictory address at Hilton Head a couple of years ago. It has never been any fun to follow Sammy.  And the times I have had to do so, I have repeated the old comment attributed to John Warner, talking about his wedding night with the oft-married Elizabeth Taylor: “I know what I am supposed to do, I just don’t know how to make it seem new and interesting.”

To me the real core of being a trial lawyer is persuading people. Everything that we do is about convincing somebody-judges, jurors, clients, opponents-to do what we want them to do. One of my great mentors, Hank Hankins, said that trial work was bending others to your will, and that’s accurate. We package arguments, present precedents, position facts, and use all of our powers to persuade others and to convince them to adopt our positions. Any skill I have in achieving that end has been shaped by the lawyers I have been blessed to interact with over my career. Those lawyers fall into a number of categories that I believe should resonate with all practicing attorneys.

First, I have to acknowledge my Mentors. When I first came to the bar, I was lucky to work with some really good lawyers. My two principal mentors at the Golding Crews firm were Marvin Gray and John Golding. I have often said that Marvin taught me how to be a lawyer/professional and John taught me how to be a lawyer/trial advocate.

Marvin Gray was an excellent lawyer. He also treated everyone with great respect and courtesy. Whenever he called another lawyer, Marvin invariably asked “Is Mr. Hewson in? MK Gray calling.” He gave the honorific to the person he was calling, while referring to himself as merely MK Gray. Marvin saw value in training young lawyers not only in the law, but also how to act with other lawyers. On most Friday afternoons, the associates would congregate in Marvin’s office where he would pull a bottle of Virginia Gentlemen out of his bottom desk drawer and we would then reminisce about the week or discuss an opinion that had just come out. Marvin read the advance sheets, and this was when they were really “sheets”. Marvin kept an annotated black notebook that he carried with him to court and later when he went on the bench.

John Golding was cut from different cloth. John was as skilled an advocate in the courtroom as I have ever seen. John’s specialty was defending physicians, and he understood the medicine and how to present it to folks in an understandable and digestible way. John never talked down to the jury, but it was always clear that Professor Golding was teaching them what they needed to know to unravel the mysteries of medicine. John did not suffer fools easily. Luckily for me, those fools were generally found across the “V.” as plaintiffs’ lawyers, plaintiffs themselves, or plaintiffs’ experts, although occasionally John leveled his disappointment at those who worked with him. It didn’t take too many times of being shown your inadequacies by John to anticipate and shore up any weaknesses in your case. John also was an accomplished actor in the courtroom, bearing himself with presence and brimming with confidence. I learned from him that great art of appearing to be completely in control and absolutely convinced that you had the winning argument, even if you had a few doubts lingering down deep. At least I had those doubts - I am not convinced that John ever doubted!

I was later blessed to have Hank Hankins as my mentor. Hank had that rare gift of insight into legal problems and the ability to hone in on the key issue that would determine the outcome of the case. And he was able to brilliantly marshal arguments and logic to ultimately prevail on that central point. A walk down the hall to discuss a problem with Hank always yielded a new line of attack or reassurance that you were on the right track.

Having been equipped with at least rudimentary skills by these excellent mentors, I then benefited from my interaction with the Triers. I have been fortunate to try cases and work with some truly remarkable trial lawyers. I am reluctant to start listing the folks in this category for fear of leaving out a few, but the list has to include these friends: the late Jim “Butch” Williams from Greensboro, with whom I tried my longest case; Gary Parsons; Dan McLamb; the late Harvey Cosper; Jimmy Williams; and Jim Cooney. This is a truly remarkable cast of trial lawyers and I have to admit that I stole a little (or perhaps a lot) from each one of them. It was an honor to watch them work and to see how their approaches to trial work were so interwoven with their personalities and natural strengths. What was appropriate for one might not have worked for the other. These lawyers knew themselves and knew the value of being true to themselves in each presentation to the court and jury.

I have also benefitted and learned from the remarkable Judges before whom I have appeared. My list must begin with the late Erwin Spainhour, whom I knew both as a trial lawyer and as a judge. I have lots of stories from practicing in front of such Titans as Frank Snepp, Bob Kirby, Tom Seay, Walter Allen, Bob Lewis, Jud Downs, Forrest Ferrell, and more recently before David Lee, Bob Ervin, Don Bridges, Louis Bledsoe, Jim Gale, and Mike Robinson. This is an eclectic group and shows the need for lawyers to adjust to meet the differing needs and requirements of different judges. What works to convince one judge may not work as well to convince another. We have to know a judge’s predilections and tailor our presentations to fit with the judge in a particular case.

I would be remiss if I didn’t mention that I have also learned a lot through the years from the many plaintiffs’ lawyers with whom I have had to deal. I won’t list those names and feed their considerable egos, but you can learn from them, particularly from the rhythms and demands of their personalities. Similarly, the great mediators with whom I have interacted over the years have also taught me a lot. Two stand out to me as instructive. Bonnie Weyher has a gift of connecting with plaintiffs. She is empathetic, which immediately resonates with folks who think they have been injured or wronged and so, they listen to her. Tapping into some of that in my interaction has made me better at the art of prevailing at mediation. Similarly, Ray Owens has remarkable talent as a mediator, blending a cajoling nature with a wealth of experience and insight into the personalities and motivation of claimants and defendants and their lawyers to help the parties move toward settlement. The ability to read people and tailor arguments helps mediators and can also help us better represent our clients at mediation.

Finally, I am quick to admit that I believe I have enjoyed a successful career as a trial lawyer due to a willingness to surround myself with lawyers who are a lot smarter and more talented than I. These are the Youngsters. One of my first associates was John Grupp. Despite a questionable background of Duke undergrad and UVA Law, John was remarkably easy to work with. Our personalities worked well together, and John’s organized way of thinking brought some order to the chaos I occasionally demonstrate. Lori Keeton, a very gifted writer, and Jason Benton, a talented trial lawyer with a superb outlook on life, helped me immensely. As did Chip Holmes, after I managed to convince him to come to my aid in a time of need and join our firm. Currently, I continue to benefit enormously from the work of my partner, Ben Chesson, a true craftsman as a writer with a keen mind and a prodigious work ethic. Blessed with real talent, Ben has made it very easy for me to enjoy some success over the last several years. And he has helped make the last few years much more interesting as together we have moved into new fields of practice and picked up new areas of the law to study and learn.

I tell young lawyers that they should watch really talented lawyers and learn from them. When I was a young associate, we were fortunate that clients were willing to pay for young lawyers to go to trial and soak up the experience, knowledge and techniques of more senior lawyers. Now, even if you can’t bill for that, take advantage of the opportunity. But don’t try to be the lawyers you watch. Try to see what works for them and consider how something similar might work for you. I’ll never have the coldly logical approach of Hank Hankins or the elegance of Butch Williams. I won’t have the self-effacing nature of Harvey Cosper or the quick wit of Sammy Thompson. And fortunately, I will not have the pugnacity of Gary Parsons! But absorb little bits of all the trial lawyers you see and use that to your advantage. That is the real gift, the real secret to being a good trial lawyer.


David N. Allen is a past president of NCADA and 2020 Recipient of the Excellence in Trial Advocacy Award.

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