Day on Torts
3. A Solid Knowledge of the Law of Civil Procedure.
The adoption and expansion of the discovery section in the modern-day rules of civil procedure was intended to reduce the number of trials by providing a mechanism for the flow of information between parties to litigation. The idea was that if one party to a dispute learned the opposing party’s view of the facts and law more cases would be dismissed without the expense of trial.
It worked. The “vanishing civil jury trial” is now a reality. The fact of the matter is that over 98% of all cases are settled before trial and even the cases that go to trial are subject to the rules of civil procedure. A failure to know the rules can result in a dismissal of your case, a restriction in the evidence you present, and other things one would just as soon avoid.
So, truly great trial lawyers learn the rules and use them both as a sword and a shield. For example, a great trial lawyer understands how to draft an affidavit in support of or in opposition to a motion for summary judgment. He or she knows how and when to ask a court to grant additional discovery before ruling on such a motion.
As another example, a great trial lawyer knows the interplay between Rule 59 and appellate court review of the case.
These lawyers reasonably accommodate other lawyers, unless those lawyers have proven themselves unworthy of such accommodation or the accommodation will hurt a client or client’s cause.
Great trial lawyers understand that the rules change and keep up with those changes.
Great trial lawyers understand that every judge has “local rules,” not all of which are written down. The lawyer learns the written rules and makes a reasonable effort to learn the unwritten rules.
The rules aren’t sexy. No one dreams about arguing a motion to amend. But the fact of the matter is that the rules of civil procedure (and evidence) represent the rules of the litigation, and those who don’t know them are at a clear deficit regardless of their advocacy skills.