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Trial Lawyer or Litigator
Some lawyers prefer to be called "trial lawyers" rather than litigators. The idea is that "trial lawyers" try cases, and "litigators" get ready to try them but rarely actually do. This is pretty much correct in a general sense. I guess I started thinking about this recently after talking to a non-lawyer who wanted to know if there was a difference between the two terms. That discussion, in turn, made me wonder about what skills are needed to succeed in the courtroom.
I believe that success in trying cases (which obviously also involves getting ready to try them) is mostly shaped by three factors: information mangement, strategy, and showmanship. I've listed the factors in that order for a reason.
Information Management
Information management is the drudgery of preparing a case. But everything else depends on this aspect. Is there a smoking gun in the case? Or, are there one or two key facts (maybe in documents) that thoroughly define your version of the case. Well, you'll never know unless you laboriously comb the documents and thoroughly prepare for depositions and so forth. Most cases these days are subject to intense scrutiny, which lawyers call "discovery." In the old days, when there wasn't as much discovery, it was easier to manage the information. Now, almost every case produces a mountain of information.
And, when you have a mountain of potential evidence, you have to have a system that lets you put your hands on the information you need quickly and to sort it to get to the really useful stuff. This is where technology helps, and where lawyers often don't work hard enough to manage the information that they have. The shame of this neglect is that it is the sort of thing that anyone can do. You don't have to be blessed with natural charsima to become a manager of information. You simply have to have persistence and a structured system, which almost without a doubt means using computers and technology. But technology is just a tool, and it isn't going to win cases.
Strategy
Strategy is the next important factor, and it obviously depends on having good information. If your information is bad or incomplete then your strategy will be flawed for obvious reasons. The ability to understand what strategies are available and to choose the correct one is --theoretically-- something that anyone should be able to learn. From what I can tell, though, it doesn't work that way. Some people seem to be able to make bold decisions that advance a case (or keep it away from peril) and some people have trouble doing anything that hasn't been pre-certified as acceptable. Some lawyers just can't adopt an unconventional strategy. And while they may not lose cases that don't deserve to be lost, they won't win the close ones that require something more than a pre-fab approach. This brings us to the next level, which is where the "trial lawyers" operate.
Showmanship
A trial lawyer is good at improvising to create new strategies, and and to create theatrical moments that can turn the tide in a close case. In fact, most really great trial lawyers (and there aren't a lot of them) seem to thrive on the uncertainty inherent in a typical trial. Interestingly, most trial lawyers seem not to enjoy the tedious process of managing the information (i.e. the first factor). Their specialty is to glean the key information and build strategies that they can revise at a moment's notice. So they often have someone around them who enjoys the "information management" part, which is good.
I guess it all can be described by Charlie Parker's explanation about how to play the complex form of Jazz known as Be-Bop. "First, you've got to master your instrument. Then you've got to forget all that shit and play."
© Copyright 2002 Ernest Svenson.
Last update: 4/27/2002; 11:01:06 AM.
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