I participated in a panel discussion at for the Young Lawyers Division of the Tennessee Bar Association on Friday and was asked this question: what does it take to be a great litigator?
I knew in advance that I would be asked that question and gave the matter a good deal of thought driving from Atlanta to Nashville Friday morning. My response seemed to go over pretty well so I thought that I would share the thoughts on this blog.
I changed the question to "what does it take to be a great trial lawyer?" I chose "trial lawyer" over "litigator" because I think that the readers of this blog tend to view "litigators" as paper-pushing big firm lawyers who don’t try cases. It is true that there are a significant number of lawyers in litigation departments in big firms who will never see the first or second chair of a jury trial, but it is also true that there are some great trial lawyers in those firms. My goal is identify the attributes of great trial lawyers, regardless of the type of cases they try, who they customarily represent, or whether their office is over the bank on the town square or in an all-glass office tower.
Now, a couple preliminary statements. First, these thoughts are in no particular order. That is, I am not listing the attributes of a great trial lawyer in order of their importance.
Second, I am not talking about what it takes to comply with the standard of care as a trial lawyer. I am identifying those lawyers who practice above the standard, who are truly at the top of the heap.
Third, a great trial lawyer need not have all of these attributes. Every lawyer has at least one weakness. A great trial lawyer knows his weakness(es) and figures out a way to work around each of them.
Finally, one or more of you (perhaps all of you) may ask what qualifications I have that makes me think I can create a list of attributes worth reading. That ‘s a fair question. My response is that I was trained by a great trial lawyer (John T. Conners, Jr.) and I have been fortunate enough to have been swimming in the deep end of the litigation pool for twenty-six years. By that I mean is because I worked six or more days a week with Mr. Conners for the first eleven years of my career I had the benefit of working on some significant cases early in my career and most of our adversary counsel were very good or even great lawyers. I left my old firm fifteen years ago and my practice since then has been such that I customarily face lawyers that most people agree are very good or great lawyers. It is my interaction with these lawyers, plus my conversations and interactions with the thousands of lawyers I know in Tennessee and around the nation, that form the basis of these thoughts.
1. A great trial lawyer knows the substantive law applicable to the cases the lawyer evaluates, accepts, settles and tries.
Great trial lawyers make intelligent case selection decisions based in part on applicable substantive law. This does not mean that a good trial lawyer takes only cases that can be won – if that were true there would be no good insurance defense lawyers ( they do not get to pick their cases).
No, a good lawyer knows the law so that if the lawyer has an opportunity to accept or reject a case (or a legal position in an accepted case) a reasoned judgment is made about the merits of the case (or the position) on the known facts. A good lawyer does not have to have the law memorized (although that is a plus) but needs to know the limits of his or her knowledge and look up what he or she doesn’t know. This task can be assigned to a different lawyer, but a good lawyer knows what needs to be researched and has sufficient experience and judgment to look for weaknesses in research done by others.
The law is important because it is, well, important. Facts are important. The ability to persuade is important. Lots of things are important. But the fact of the matter is that there are lots of wrongs in the world for which there is no remedy. And there are lots of wrongs for which there is in ineffective remedy. A lawyer who seizes upon wrongs without regard for the law will go broke or, at a minimum, will have some very unhappy clients.
My belief that a great lawyer knows the law does not mean that one should not push the legal envelope. Great lawyers push the envelope as appropriate or necessary. But a great lawyer selects a case or adopts a position knowing that the envelope needs to be enlarged, and therefore is not surprised by a legitimate motion to dismiss, a motion for summary judgment, or a motion in limine. These attacks are anticipated and therefore pleadings are constructed and evidence is gathered to meet these attacks in a timely, effective manner. A great trial lawyer may lose such a fight, but not because of a failure to anticipate the attack, frame pleadings appropriately, gather evidence, or make appropriate arguments.
A great lawyer keeps up with changes in the substative law in the lawyer’s practice areas. Once again, no lawyer can keep track of every case in the lawyer’s field, but a great lawyer does sufficient reading or attends appropriate seminars have a solid base of knowledge and is aware of current trends in the law. A great trial lawyer can handle cases in almost any field of substantive law, but understands the need to become educated early enough in the litigation process so that case selection and critical decisions are made from a firm knowledge base.