Dan Small: When I teach trial practice or other aspects of litigation, I often find myself trying to help people understand a point I'm making by relaying a story from a real-life trial. Once I came home from doing a program on cross-examination, and I was telling one of the stories to my wife, Alix. She's patiently heard many of my stories over and over again, but this happened to be one that she had not heard. When I finished, she commented that many of the stories that I use are both interesting and contain helpful lessons for other trial lawyers. She suggested that I start writing these stories down to preserve them and find a way to share them with others.
I was pretty skeptical. But by happenstance, my law firm had recently distributed some very nice hardcover, spiral-bound writing journals with the firm name inscribed on the cover and blank lined paper inside. I'm not sure why they did that, but I'm most grateful to whoever made that decision. I was able to ask around and accumulate several of these journals from colleagues who weren't going to use them.
At the same time, I had several cross-country flights for cases on the West Coast. To my surprise and delight, I found that writing is a great way to pass the time in flight. So I followed my wife's advice, opened up a journal book and started writing about some of my cases.
On one flight, I pulled out the journal and pen before the plane left the ground, wrote for the entire flight and finally put the tools of the trade away as the plane was landing. I hadn't spoken to the person next to me at all, but as we were landing and I was putting things away, she turned to me and said, "You must love to write. You've been writing the whole flight!" She's quite right, and the process of remembering, revisiting and writing down some of these extraordinary experiences has in itself been worthwhile and rewarding.
The result of all that writing was a book published in 2024 by the American Bar Association called Lessons Learned from a Life on Trial. The book was fun to write and is hopefully fun to read. But I've always enjoyed the shorter format like a newspaper column. So I was delighted when Lawyers Weekly asked me to adapt the individual cases and lessons learned into a series of columns, and now we’re adapting that series into this podcast series.
There are several challenges that I discovered along the way.
The first is memory. I'm fortunate to have been trying cases for many years, so some of these cases are old. I made little or no effort to dig out transcripts, pleadings or other documents to corroborate my memories of the case. This is not an attempt at a detailed history, but rather an effort to relay experiences that may help teach useful lessons. Any mistakes of fact or law — and undoubtedly there are many — or even artistic license I took to make the stories clearer are strictly the fault of the author, and I apologize to those involved in the cases.
The second is privilege. I've had the honor of representing some extraordinary people as their counsel to governors, entertainment figures, athletes, extraordinarily successful businesspeople and more. But with that honor comes the tight restraints of the attorney-client privilege. The how and why of many things that happened during cases, particularly in private practice, must necessarily remain cloaked in the privilege. As a result, some key cases and important stories received short shrift here, or no mention at all.
The third is people. As trial lawyers, we all learn from each other, and I've been very lucky to learn from some great lawyers and judges. Much of what I know about this strange process we call trials, I learned from watching and listening to others. I owe debts of gratitude I can never fully repay to them.
I also owe gratitude to friends and family, including my wife, Alix, and my children, Bailey, Schuyler and Gabrielle, for providing me with love, support and encouragement and putting up with my many absences and distractions. Just like being a trial lawyer, I had to put in the work to be an author. This series is one way for me to say thanks to all who helped to make it happen.
I hope that you enjoy these podcasts, share them with others and share your thoughts with me.
