by John Hueston

“It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat.”
Theodore Roosevelt, “Citizenship in a Republic”
Speech at the Sorbonne, Paris, April 23, 1910

Mentoring courage begins in very small ways. Three months after arriving at O’Melveny & Myers as a new associate, litigation partner Phil Kaplan called me into his office. “John, I would like you to handle a hearing next week.” I no longer remember the nature of the matter, but I remember my fear. I did not even know how to introduce myself at court. “Will someone accompany me?” “No.” Phil paused a moment. “Go ahead and get there the night before so that you don’t feel rushed.” Prior to the hearing, he graciously mooted potential issues with me.

At the hearing, despite opposing counsel merely submitting on the briefs, I felt as if I had achieved a major milestone. It wasn’t until after the hearing that I realized that I could have arrived on a morning flight and that Phil Kaplan’s mooting of issues was designed more to calm my nerves than to ensure victory. Looking back on the first hearing, I realize that the milestone of that first court appearance was experiencing firsthand the benefit of a caring mentor in the first stage of my practice.

The stakes were higher in January 2006, when another longtime mentor, Dave Scheper, stepped in at just the right moment. I was soon to deliver the opening statement in the Enron trial involving Kenneth Lay and Jeffrey Skilling. Though I tried to hide it, I was nervous: courtroom comfort in southern California had not transferred to Houston.

Dave was the former criminal chief of the U.S. Attorney’s Office in Los Angeles. Although he was now in the private sector, he still called to provide the kind of guidance and reassurance that helped me develop as a trial lawyer. Sensing my anxiety, he began with his old joke, “There’s the opening you plan, the opening you give, and the opening you should have given.” We laughed, which was just what I needed. We also discussed how it was important to “pitch” but never memorize the opening so that the connection with the jury would remain natural and direct. And he reminded me of the same message we had focused on since I began at the U.S. Attorney’s Office a little more than a decade earlier: “Ignore all the distractions, and get into the zone with the twelve average folks who matter.” The night before my opening, I finished my last “pitch” with Task Force colleagues at about midnight. As I threaded my way past media trucks in the early morning, I brought up the reassuring image of the jurors. And later, two minutes into the opening, I was in the familiar zone and comfortable, thanks in part to the timely advice and encouragement from one of my most important mentors.

As I have assumed positions of responsibility, I have attempted to mentor courage with others. At the U.S. Attorney’s Office, I hung the Roosevelt quote on the wall and repeatedly reminded nervous new prosecutors that I welcomed failure if in pursuit of the right fight. I gathered the entire office to moot openings and closings for each attorney’s first few trials. Moments before starting the first day of trial, every prosecutor swung the Office Trial Bat (donated by a federal agent which had seized it as a fake Joe DiMaggio autographed bat) while surrounded by cheering colleagues. To emphasize excellence in practice beyond the jury’s verdict, I evaluated trial performance before verdicts so that the mentee knew that my review was untainted by the result.

Now as a litigation partner at Irell & Manella, I emphasize steep learning curves and early associate experience but not at client expense: though it often would be easier to handle something myself, I work to moot and prepare associates to handle hearings but write off the time involved. I try to foster a culture of praise and feedback, emailing a play-by-play account of an associate’s first hearing in the way a trial would normally be covered. We still swing the Trial Bat—on loan from that same federal agent—and moot oral advocacy from hearings to closing statements at trials.

To mentor courage at times means encouraging attorneys to take risks without clear economic benefit, or to suggest choices which work to our own short-term economic detriment. For instance, we mentor courage by counseling a valued attorney to take another path less traveled but one which is more likely to fire her passion for the law. We foster creative thinking about the breadth of legal work by taking the initiative at our firms to credit the hours devoted by the junior attorney to bar and community service. We inspire initiative by explaining the hidden benefits of pro bono and bar service: it diversifies our legal experience, changes the dynamic of the typical workday, wards off burnout and allows interaction and networking with attorneys in different areas of the law. But most importantly, we mentor courage by stepping forward to lead by example. 

John Hueston is 2011 President of the Orange County Bar Association and a partner with Irell & Manella LLP specializing in white collar criminal defense and business trials. He can be reached at jhueston@irell.com.