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Kentucky Bar Association Continuing Legal Education Handbook Are Intended to Provide Current and Accurate Information About the Subject Matter Covered

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Kentucky Bar Association Continuing Legal Education Handbook Are Intended to Provide Current and Accurate Information About the Subject Matter Covered WHAT LAWYERS CAN LEARN ABOUT COMMUNICATION AND PROFESSIONALISM FROM ABRAHAM LINCOLN CLE Credit: 1.0 ethics Wednesday, June 17, 2015 2:25 p.m. - 3:25 p.m. Thoroughbred 1-3 Lexington Convention Center Lexington, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i What Lawyers Can Learn from Lincoln about Professionalism and Communication .............................................................................. 1 Notes for a Lecture on Law ............................................................................................. 7 The Ultimate Role Model – What Lawyers Can Learn from Lincoln ................................. 9 What Abraham Lincoln Can Teach Us .......................................................................... 15 Lessons for Leaders from Lincoln .................................................................................. 17 THE PRESENTER Talmage Boston Winstead PC 500 Winstead Building 2728 North Harwood Street Dallas, Texas 75201 (214) 745-5462 [email protected] TALMAGE BOSTON has been a member of Winstead's litigation practice since 1997. His practice involves all aspects of dispute resolution in commercial transactions. With more than thirty-four years of business litigation experience in Dallas, Mr. Boston has tried jury cases and argued appeals all over Texas in both state and federal courts. He is board certified in both Civil Trial Law and Civil Appellate Law by the Texas Board of Legal Specialization. Mr. Boston served as the 2003-2004 Chairman of the Litigation Section for the State Bar of Texas and as the 2004-2005 Chairman of the Council of Chairs for the State Bar. For his leadership activities, he received a State Bar of Texas Presidential Citation Award every year from 2005-2011. In June 2011, he completed his three-year term as a member of the Board of Directors of the State Bar of Texas. He is also a past Chairperson of the Business Litigation Section of the Dallas Bar Association. Since joining Winstead, Mr. Boston has been one of the most sought-after seminar speakers at State Bar and Dallas Bar Association litigation seminars, speaking on the following topics: summary judgment practice, "Dos and Don'ts in the Courtroom," arbitration, and a wide variety of litigation ethics topics. He has also been a featured speaker at the ABA Annual Meeting 2012-2014, and at the State Bar Conventions of Texas, Arkansas, Nebraska, New Hampshire, and Kentucky. Mr. Boston’s latest book, Raising the Bar: The Crucial Role of the Lawyer in Society (Texas Bar Books 2012), was published in February 2012. i ii WHAT LAWYERS CAN LEARN FROM LINCOLN ABOUT PROFESSIONALISM AND COMMUNICATION Talmage Boston I. SPECIFICS ON LINCOLN THE LAWYER- A SUMMARY A. What Made Abraham Lincoln Want to Become a Lawyer? And in particular, since the "real lawyers" of his era were trial lawyers, what made him want to become a trial lawyer? 1. The drama and competition of litigation – Abraham Lincoln knew the drama of trials from a young age. In his twenty-five-year career as a trial lawyer, he and his partners took 1,000 cases to verdict. That's an average of more than three jury trials a month. 2. The law allowed him to maximize his strengths - reading, writing, speaking, and problem solving - people enjoy doing what they have to do and are good at. He was a man consumed with language and empowered by the force of integrity. 3. The law offered him the prospect of providing economic security - though he had no desire to chase ambulances. Lincoln’s financial background prior to entering the law: a. A man born in serious poverty. b. A man who nearly went broke running a store. c. A man who detested farming and manual labor. 4. The law opened the door to politics, where his real ambition lay, as in those days most politicians started out as lawyers because nothing could train someone for a career in politics like a career in law. a. The capacity to construct a tight legal argument prepared him for constructing a tight political argument. b. The capacity to draw up a tight brief prepared him for drawing up a tight statute. c. The capacity to articulate a constitutional basis for his legal positions prepared him for having a constitutional basis for his political decisions. 1 d. The capacity to fully investigate and research his legal cases prepared him for making sure he had the facts on his side in his political campaign. e. The capacity to ask questions as a skilled litigator served him well in politics. f. The capacity to utilize perfect timing in seizing initiatives in law prepared him for doing the same in political office. B. What Kind of Trial Lawyer Was Abraham Lincoln? 1. One with a bent towards resolution - he favored settlements over trials. 2. Nevertheless, he recognized that some disputes had to be "tried by war." And when in battle, there can be no timidity. 3. He was versatile – handled all kinds of cases – trials and appeals. 4. He was gritty; not flashy. a. Handled 5,000 cases over twenty-five years; "The way to succeed? Work, work, work is the main thing." b. Took on clients who weren't saints; c. Advertised; d. Had to beat on clients to get paid; e. Rode the circuit; f. Was abrupt and frank in conversations (some might call it laconic or terse); g. Acknowledged and could deal with the law's drudgery; h. Was a full-time lawyer; with no entrepreneurial bent. 5. He was good enough to generate repeat business from corporate clients. 6. He was honest - didn't play fast and loose with facts; and didn't misstate opponents' arguments. He had zero tolerance for anything deceptive. 7. He had the common touch with juries - "shoot down low, and the common people will understand you." 2 8. He saw his job as being the "grease" which could reduce friction - i.e., it is grease that allows the movement of a machine without malfunction. II. LINCOLN'S ADVICE TO YOUNG LAWYERS A. Diligence: Leave Nothing for Tomorrow Which Can Be Done Today Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can be done. B. Extemporaneous Speaking Should Be Practiced and Cultivated It is the lawyer's avenue to the public. But don't become so enamored of speech-making that you claim an exemption from the drudgery of the law. C. Discourage Litigation Persuade neighbors to compromise whenever you can. Point out that the nominal winner is often a loser - in fees, expenses, and waste of time. By being a peacemaker, the lawyer becomes a better man. There will still be business enough. D. Never Stir up Litigation Don't create lawsuits where they don't currently exist. E. The Matter of Fees An exorbitant fee should never be claimed, and don't take your whole fee in advance, nor any more than a small retainer; because if you do, you will lack interest in the case, and therefore will lack skill and diligence in performance. F. Resolve to Be Honest at All Events III. ABE'S WALK MATCHING HIS TALK A. Diligence 1. Worked long hours; 2. Rode the Illinois circuit to stay busy; 3. Took work as it came in the door, even if it meant being on both sides of an issue; 3 4. Knew all authorities that impacted his case; and 5. Prepared to the fullest, particularly when time permitted. B. Extemporaneous Speaking Cultivation 1. Began practicing as a child; 2. Politics and public lecturing honed his skills; and 3. Never became enamored of his own voice. C. Discourage Litigation 1. When facts or law aren't on your side - settle quickly! 2. Filed no lawsuits unless he believed facts and law were on his side; and 3. Believed in and encouraged workouts and payouts in debtor- creditor cases. D. Never Stir Up Litigation 1. No generating lawsuits on your own; and 2. Okay to market yourself, but don't create lawsuits. E. The Matter of Fees 1. Don't gouge or overcharge; 2. Structure the fee to stay motivated and incentivized; and 3. When client defaults, perfectly fine for a lawyer to sue to collect his fees. F. Be Honest 1. That means intellectually honest in presenting your case; 2. Be forthright in all dealings - do and say nothing that's misleading or deceptive - your reputation is EVERYTHING; and 3. Be fair, high-toned, and honorable. IV. LINCOLN THE COMMUNICATOR- A SUMMARY A. He Had an Acute Sense of Audience, Which Allowed Him to Empathize with Them, Touch Their Hearts, and Change Their Minds 1. Had down-home, common folk touch with juries; 4 2. Cooper Union: evidentiary argument, a brief so airtight it would convince an intellectually-demanding audience; 3. Emancipation Proclamation - a purely legal document that could withstand Supreme Court challenge; 4. Major speeches - full blown elegance with poetic language.
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