Hardin tells future advocates to break the ‘old rules’ and develop own style

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Houston trial lawyer Rusty Hardin

Ask around the courthouse about Houston trial lawyer Rusty Hardin, and you’re sure to get an earful about his unorthodox techniques.  During a lunchtime presentation to Law Center students, the highly respected defense attorney outlined some of his unique approaches to trying cases – but encouraged the audience to develop their own. 

Hardin’s bottom line?  “Be yourself!” he counseled Law Center students during the semester’s first presentation of the Blakely Advocacy Institute’s Trial Lawyers Craft Speaker Series. “You’ve got to be natural. Don’t worry about doing it the right way.  Do it in a way that makes sense to you,” he said. 

Hardin has been doing it his way since 1990 when he left the Harris County District Attorney’s Office for private practice.  He admits it was a career leap for someone who had never tried a non-government case – but he’s never looked back.  Over the past three decades, legal magazines have proclaimed him “Super Lawyer,” the “Go-To Lawyer,” and one of the “25 Greatest.” His high-profile clients have ranged from accounting giant Arthur Andersen in the wake of the Enron collapse, to E. Pierce Marshall in his fight against Anna Nicole Smith’s claim for part of the Marshall fortune.  In recent weeks, Hardin again hit the front pages as a defense counsel of former Astros pitcher Roger Clemens, who stands accused of lying to Congress about steroid use.

Surveying his crowd of future advocates, Hardin offered an encouraging assessment.  “Every one of you has the chance to be a better trial lawyer than the ones who are practicing today,” he said, and cited two facts to support his claim.  He noted how 85 percent of today’s cases are settled before they get to trial, which denies young associates (and even eight- and nine-year veterans) any chance to try a case.  “It’s a dying art,” Hardin lamented – and he lauded the importance of the trial advocacy training offered at the Law Center. 

The second fact working in favor of current students is the way that many trial lawyers “play by the old rules” – which leaves them vulnerable to an opposing counsel who defies many of the old standards.  Hardin admits to being such an iconoclast, and offered a few examples of how he breaks with the ingrained standards of the profession.  Among his suggestions:

  • Always ask open-ended questions, and then listen. “Did you ever get to know anybody by asking them leading questions? No! One is eliciting information, the other is limiting it,” he said.
  • Ask questions even if you don’t know the answer. The old rule, he exclaimed, is “Bull!” How else are you going to know the answers, he asked, and if you get the witness talking, who knows what the jury might hear?
  • In jury selection, discuss a potential juror’s position if he or she seems biased against your case. The conversation can be used to elicit additional information from the rest of the jury pool.
  • Don’t skirt questions just because they may work against your case.  If you avoid asking these questions, the jury will know you are avoiding the issues – and will be left to wonder why.
  • Go with your gut rather than conventional wisdom. Hardin said he grew up in a small town with African-Americans, and he respects them and trusts their judgment. He said he never understood why some lawyers hold that African-Americans are soft on crime or biased toward their race. Hardin never hesitates to seat people of color on juries, and he’s the same way about women jurors.  But he draws the line on at least one group.  “I don’t like rednecks,” he said bluntly. “I don’t like people who make instant judgments. Why would I put people on the jury whom I don’t like – and then expect to be able to persuade them to my way of thinking?”
  • Avoid technology such as PowerPoint and computer imagery as it removes the personal relationship between the witness and attorney.
  • Treat both jurors and witnesses as if they were just average people having a conversation in somebody’s living room. “Put them at ease,” he said of witnesses, “and they will tell the jury something it doesn’t know.”

Hardin said he genuinely enjoys meeting and talking to people, including those in a contentious lawsuit. “If you don’t like people, don’t be a trial lawyer,” he said. “If you like people, then there is nothing more fun than trial work.”

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