Getting Into Litigation

From my point of view, the real reason to be a lawyer is that-as corny as it might sound- every now and then you have an opportunity to help somebody. Given my own interests and talents, the best way that I can help somebody is by presenting a case in a courtroom. It’s really the only part of the law that I’ve ever really wanted to do, which is to try cases, to litigate controversies, and to try to be the best courtroom advocate that I possibly can.

For me, the thing that is the greatest challenge for any courtroom lawyer is defending a criminal case with a client who is arguably truly not guilty, where the potential downside is someone who might actually be innocent being convicted of a crime.

The most exciting part of this job is getting a problem from a client that is a difficult problem, and it may seem to be an insoluble problem, and coming up with ways to solve it. This means getting a solution to the problem that is a better solution than a reasonable person thinks is possible. The result is usually not all that the client wants, because clients sometimes want things that are not completely reasonable; clients are not necessarily the most rational judges of what is a realistic outcome. I therefore try to look objectively at a problem, at what would be the standard result-what would you expect to happen with the resolution of this problem, what would be better than that, what would be worse than that-and hope that you end up better than that-and, often, substantially better than that.

Getting up to Speed

To be good at this job, you have to be an incredibly quick study, because every case that you get is going to be different; every case that you get is going to involve a different industry, or a different business, or a different fact pattern, and each of those situations is going to be complicated. The key to this is being able to digest an enormous volume of material very quickly. I think everybody does it differently; what works for me is trying to focus on the particular problem, separating it from what I know from other things, and just giving it as much of my focused attention as I can.

In a more metaphysical sense, the first part is all learning-what are the facts in this case; how can I learn them; where do I get them; who else might know something; what’s the relevant body of law; what does it say; how are we going to apply that here? Once you know the facts, you know the law, and you’ve thought about how to apply the two together, then the question is, who do I persuade, and how do I persuade them? In the ideal situation you will be able to get the facts of the case. Some of those facts will come from the client. Many of them will come from other sources, whether they’re written material, other witnesses, and so on. Ideally, you want to learn everything there is to know about the case, you want to understand the law, and then you want to persuade your adversary, or the judge or jury, that your side is right.

The Most Important Areas

Obviously, a very important part of litigation is persuasiveness; however, I think the single most important thing in virtually all aspects of litigation is judgment. Within the issue of judgment, most litigations involve incredibly complicated fact patterns-thousands of discrete facts; hundreds of players; much more information than any decision maker, whether it’s a judge or a jury, can ever really be expected to understand thoroughly. The most important ability in trying cases is understanding that, out of the thousands of facts in the case, people are really only going to focus on five or six-and figuring out which five or six facts are really going to resonate, are going to be meaningful, are going to be case-determinative-and then selecting those, and hammering and hammering away at them. If you can select critical facts and focus the decision maker’s attention on them-and you’ve selected the right facts-then you have created themes, and if you have created the right themes you are going to win. I think that’s the most important ability that we have in this field.

Rules for Negotiation

My negotiation style is to figure out where I’m willing to end up, and I think I’m a little more straightforward in terms of getting there. If my goal is to achieve "X," I don’t think it’s a particularly great use of time to break the road to "X" into a hundred steps, going one step at a time. Personally, I think it’s much better if the lawyers simply have a pretty good idea of where they want to end up; think through what the other side is likely to need to achieve; and find out fairly quickly whether they can get there.

At the same time, you can’t ever feel like you have a case "locked up." There’s no "locking up" a case until it’s all over. It’s different in every case-I don’t think there’s any set of rules that’s going to work for every case. Having said that, there are clearly some things that matter a whole lot. One of them is having complete mastery of the facts; there is nothing as important as that. You have to know as much about the case as there is to know. You have to be more prepared than anybody else. Of course, that’s hard to do-because the lawyers on the other side are working, too. The second thing is, from the universe of facts that are out there, picking out the three, or four, or five that are really going to matter. That’s what I was talking about before with respect to judgment as the critical element. The rest of what you need is going to vary from case to case. Sometimes you have a client who is going to be very persuasive on the witness stand; sometimes you don’t. It’s obviously better if your client is persuasive, and while it’s not the only fact that matters, you need to know pretty early on whether this is the case. Having said that, one of the most important things is the extent to which I can tell my client’s story through the witnesses and through other evidence. My client has a story: "I didn’t do it"-in a criminal case; in a commercial dispute, "I should be entitled under this contract to…whatever." I start with the assumption that the finder of fact will be skeptical about everything my client says, because my client is an interested party. I think about how much I can prove the facts I need to prove with other evidence, so that if and when the client gets on the stand, all the client is doing is repeating things that other documents or other witnesses have said.

Strategy With Risk

The most important thing is communication. You have to know what the risk is, and your client has to know what the risk is. You have to focus on "what is the worst thing that could happen in this case." You have to tell your client, clearly, "this is what can happen if things go wrong-this is the worst it can be," and then you have to assess how likely that is, and you have to be prepared to explore with the client what risks are unacceptable. In other words, "this horrible thing could happen if things go wrong in this case. Are we willing to risk that?" That’s really a function of the communication between lawyer and client. I think one of the most dangerous thing lawyers do is promise their clients that they can achieve a particular result. A lawyer who promises a client in a litigated controversy that they can achieve a particular result is not an experienced lawyer, because there are too many variables. What matters-and what experienced lawyers do-is say, "Hey look, this result is achievable; that result is achievable; this result is unlikely; and, if everything breaks wrong, here’s what could happen," so the lawyer and client can make realistic judgments about what risks to take. You can be the most successful lawyer in the world, and still lose a case. The only lawyers who have never lost a case are the lawyers who have never tried one. In the competition for business that lawyers engage in, there is a tendency to oversell yourself, but the fact of the matter is, you can’t count on any result. You can make reasonable judgments and assess likelihoods, but there is no such thing as certainty. In fact, it’s critically important for a lawyer to recognize that-you could have had a great last case, but as soon as it’s over, it’s over, and you’ve got a whole new case, and it doesn’t matter what happened yesterday; you’ve got a whole new case that you’ve got to win today.

Best Advice

The best piece of business advice I’ve ever been given, is to double and triple check every fact. Don’t take for granted what you believe the facts to be, or what you are told the facts to be. Double check them; triple check them; check every available witness. Finally, expect that every witness you examine in a courtroom will be trying to hurt you, and figure out how to deal with that if it happens, so that anything good that happens in a courtroom is gravy.

What I need from a client most is honesty and straightforwardness; I need to avoid surprise. Getting surprised in a courtroom is almost never a good thing, so I need to be able to anticipate everything that the other side could say or do-every fact that might be bad-so that I can figure out how to deal with it. The key to that is the degree to which your client confides in you. Thus, the most important thing, from my point of view, is getting the client to be candid with you. The client has to be candid with you, and recognize that, hey, there are bad facts in every case; but I’ve got to know what they are, so that we can figure out what to do.

I always tell my clients, I cannot protect you from things I don’t know about it. It could be the worst fact in the world; you could be embarrassed as hell about it; but it’s one thing being a little embarrassed telling a lawyer. I can’t make decisions for you, and I can’t protect you from something I don’t know about. If there’s something out there, tell me; it will affect the decisions we make; it will affect the judgments we make; it will affect how successfully we can defend whatever the matter is.

This brings up another point. Inevitably, no matter how thoroughly prepared you are, no matter how candid your client has been with you, something will come up in the courtroom that will take you by surprise. How you react to that is important. The great lawyers have a knack for taking a surprising development in the courtroom as if it were perfectly expected. Particularly when the surprise is a negative one, the finest advocates will act as if the testimony the witness just gave was exactly what they expected and wanted to hear. The way lawyers react to things in the courtroom, their body language, is part of the way they communicate.

Becoming a Leader

One the first things you have to do to become a leader in the field of litigation is to watch great lawyers. There are a lot of great lawyers out there, and while you can’t stylistically be somebody other than yourself, you can pick up things from virtually every case you watch. One of the most important things is being open to many different styles and being open to learning from other people.

Some critically important skills for a lawyer to have are persuasiveness, which is a function mostly of sincerity; endurance, because you’re going to work really hard; and the ability to question everything you are told, because a lot of litigating is about doing things that are counter-intuitive-part of what we do is to essentially go against the conventional wisdom. At the same time, don’t make arguments that are going to get blown out of the water; if there’s a weakness in your argument, assume it will be exploited. If you don’t have an answer, don’t make the argument.

For me, the single most important aspect of persuasiveness is credibility-making arguments that you visibly and audibly believe in. If someone thinks you’re going through the motions with an argument-if they think you’re reading a speech, or going through rote arguments that you make in every case-I don’t think they’re going to be terribly persuaded by what you’re doing. The critical fact, and what separates people who are very, very persuasive from people who are a little less persuasive, is that the folks that really have it are perceived to be saying things they really believe.

If you are willing to learn from other people, you’ll find that one of the things that separates the great lawyers from the okay lawyers is the extent to which they appear to believe sincerely in what they’re doing and what they’re saying. Being sincere means that you’ve thought through the various issues, and you are able to communicate an honest belief in the arguments that you’re making. That sounds simple, but it isn’t. At the end of the day, the single most important thing is only making arguments that, at some level, you believe in sincerely.

The Role of Technology

A way to improve the system would be to allow a lot more people to do the preliminary court work electronically or by telephone. One of the biggest problems with litigation is that there’s too much time sitting around-dead time-and, given technology and improvements in various communication devices, there are ways to make litigation much less time-consuming and much less expensive. A lot of courts are starting to explore how to do that, and I think it’s a big improvement that could be made.

I think there will be a lot more electronic communication. I think that technology will really take hold, and a lot of stuff that now gets done face-to-face will get done electronically. There will be a tremendous movement-or the movement that has already started-in streamlining litigation, which will only be intensified to cut costs. I think sophisticated clients really have little tolerance for how long it takes to litigate a case, and how much it costs, and streamlining will allow cases to get resolved more quickly, and less expensively.

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The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.