Litigation: The 5 traits of highly effective trial lawyers | Articles | An Phat Pham Law Firm | Văn phòng luật sư An Phát Phạm

By: Howard Scher

Surprisingly few clients have the training to evaluate a lawyer’s performance, whether it’s related to a transaction, document or trial. So when you ask most corporate counsel how they go about selecting the right trial lawyer for a specific matter, you’ll probably hear terms such as “specialist,” “experienced” and “niche.” These are perfectly acceptable answers. Deep experience with specific industries, products and even courtrooms, “knowing the ropes,” has always been considered the litigation gold standard.

But if you ask the same clients, immediately after a significant positive outcome, what made the trial lawyer effective and successful, you’ll hear a different story. They’ll likely tell you that it wasn’t as much about background as backbone. After years in the courtroom, I’ve made a science of identifying the key traits of the most effective trial lawyers. Some I’ve argued with, some against. Although they all differ in age, gender, education and personality, there are some common characteristics. My four-plus decades of front-line observation have taught me that the most effective trial lawyers—the kind who thrive in any courtroom, with any client, in any matter—share these five key traits. 

1. Credibility. The first is credibility, the foundation of trust. Building a high level of trust with clients, judges, jurors and even opposing counsel is the cornerstone of effective representation. But it is a trait that is earned, not just learned. When a credible attorney tells a client he must be available on a certain day for a deposition with no exceptions, that client will listen. It’s simple: When you make a promise, you keep a promise. No exceptions. When that same attorney makes a promise to a judge or to opposing counsel, the promise is believed and kept. The time and cost of undoing agreements with any party is not only a time-consuming distraction, but it also diminishes the chances that anyone will believe the trial lawyer, no matter how experienced he is. The most effective trial lawyers I’ve seen protect their credibility at all costs. They understand that every human interaction is a chance to build trust or destroy it.

2. Civility. Litigation at its core is an argument. But it doesn’t have to be confrontational. Effective litigators understand that in the art of persuasion, civility is not only the high road, but can also be a powerful tool. Using hostile tactics of volume, anger and intimidation may result in a short-term gain, but tends to undermine an attorney’s long-term ability to persuade.  It can pull attention away from key witnesses and facts in favor of emotional reactions that are more difficult to control. And in the case of settlements, uncivil behavior tends to harm an attorney’s ability to negotiate in a reasonable time and manner with the opposition. There will always be a role for celebrity pit bulls, but the most effective trial lawyers fight relentlessly for their clients with respect, intelligence and grace.  

3. Confidence. During the course of a trial, a lawyer makes literally thousands of decisions and assessments about risk, timing, pace, advantage, leverage and value. She makes most of these without the benefit of absolute certainty, knowledge or a complete assessment of the facts. To be effective in the midst of such a large gray area requires enormous levels of personal and professional confidence.  And don’t confuse confidence with false certainty or hubris. No decision can be certain and no lawyer is always right. But the most effective litigators learn by instinct to translate mountains of structured and unstructured information into clear and decisive action, often in the heat of a trial. It’s a trait that every great military leader, athlete, coach and mentor shares. Confident trial lawyers can be spotted a mile away. You can see it in the way they walk, talk, sit, stand, listen and gesture.  They often radiate  positive energy and a sense of command that puts clients at ease and speeds the course of trials and settlements. While it can’t always be measured, it is a key asset of the most effective of our breed

4. Curiosity. The benefit of deep specialization in a narrow field of law or business often comes at the expense of broader perspective. Psychologists call it the curse of knowledge.  I’ve found that the most effective litigators resist the narrow confines of deep specialties and maintain a relentless curiosity about the world they live in. They possess an insatiable curiosity beyond law for a variety of topics and life experiences in science, art, psychology, physics and even pop culture. They have obscure hobbies and eclectic tastes. They know that solutions to courtroom challenges often come from the most unlikely places.  

Juries and judges are rarely expert specialists. They are, by design, non-expert  representatives of society at large. In general, courtroom communications are most effective if they’re on a fifth-grade level.  This can often frustrate specialists who struggle to relate their language and thinking to lay audiences. Relentless curiosity not only leads to innovative approaches and solutions, but also keeps the job of litigation continually fresh and exciting. 

5. Competitive Spirit. Choosing the last trait from dozens of remaining possibilities was difficult. In the end, I considered carefully not just traits, but true motivations. What drives an effective trial lawyer? Ultimately I settled on the only true driver: an innate competitive spirit. Effective litigators tend to take on every matter, large or small, as their must-win Super Bowl moment. To this trial lawyer type, there are no routine trials, meetings or even moments.  They thrive on the thrill of the challenge, not just the legal outcome.

Competitive spirit comes in many flavors. But effective trial lawyers consider beating their opponents as secondary to the relentless pursuit of finding the simple, elegant trial solution. One trial lawyer calls it his “obvious surprise,” an insight that is immediately understood and familiar. Another calls it the “one simple thing” that can sway a jury, change the conversation and produce the right outcome.   

This type of fire in the belly never goes out. It helps trial lawyers take on the difficult cases with fearlessness, focus and seemingly boundless energy. These types are at their best when a case seems unwinnable. Just try and tell them that something is impossible. They can’t help simmering on your matter 24/7, on the soccer field, driving in traffic or at 4:00 in the morning.  For clients, it’s added value. For opponents, it’s an unfair advantage.  

Conclusion

Many factors go into choosing the right trial lawyer, and conflicts and costs can limit your options. Of course experience matters, but it is far from the only measure.  After decades in the trenches, I’ve found that the most effective lawyers don’t just lean on their experience. They use it to enhance their five key traits and continually improve their craft.