My Biggest Challenge: Staying Outside My “Shell”

Certainly the biggest challenge for me, as an outside or, if you prefer, “outhouse,” lawyer representing private clients is keeping up my client development efforts, even when I’m absolutely slammed in the actual practice of law.  I know I’m not alone and this challenge is hard for just about everybody on the outside.

I sometimes envy people with client-development or sales-type jobs that allow (or force) them to focus exclusively on selling.  Unlike a pharmaceutical representative or residential realtor, lawyers have to constantly balance the substantive side of the job (conducting discovery, writing and arguing motions, preparing for trial) with the sales side (writing, speaking, meeting, etc.).  When push comes to shove, at least for me, the sales side usually takes a back seat to the demands of the practice.  This isn’t surprising: clients hire trial lawyers to litigate cases, not to spend their time finding new clients and more cases.  Also, lawyers aren’t typically sued for malpractice for neglecting their marketing responsibilities and focusing instead on winning the case.  On the other hand, without a pipeline of new work, we find ourselves languishing, dead in the water, when a busy case resolves.

In a perfect world, I would use others to appropriately leverage both sides of my job.  I would have associates and paralegals available to leverage for performing practice-related tasks they are equally, if not better, suited to do.  But then I would also have someone, even a part-time employee who could help make sure I keep up with my marketing and networking responsibilities, scheduling meetings, arranging for articles and speaking opportunities.

Alas, it’s not a perfect world, yet.  Until then, I’ve got to keep struggling not to neglect my marketing efforts when, as in the past few weeks, I’ve been extremely busy with a particular case.  I recently spoke with my business development coach about this challenge.  His suggestion, loosely paraphrased, was that I shift my orientation away from being a legal “practitioner” to being a legal “business developer.”  I should understand as my primary job, not to win cases or achieve favorable settlements, but rather to generate more business.  I’m not sure I understand or completely agree with this view.  But thinking about the issue has helped me develop some  simple strategies designed to help me maintain the law practice/business development balance, even when things get hectic.  Here they are:

1.  Schedule, schedule, schedule.  Like many litigators, I live my life out of a calendar.  I’ve found that, provided I get a coffee, lunch or dinner date on my calendar, I have little trouble scheduling around this appointment.  The takeaway:  get something on the calendar, even if it has to be rescheduled later.

2.  Combine case-related travel with visits to existing or prospective clients.  The most successful practitioners I’ve known make it a habit to visit existing and prospective clients face-to-face whenever they are “in town” for another reason.

3.  Calendar follow-up steps.  For every 5 appointments I schedule for coffee or lunch, at least 3 cancel or reschedule.  I have a bad habit when someone cancels at the last-minute of failing to follow through immediately to get a new date on calendar.  The result is a long, long delay and starting from scratch on the rescheduling.  I’m trying now to follow-up right away when someone cancels to get a new appoint on our calendars, even if that, too, eventually must be rescheduled.  Ideally, no meeting will be left behind.

4.  Do business development before anything else.  This is one my biz dev coach really likes.  He suggests I spend between 5 and 30 minutes each morning on client development before doing anything case-related.  I’ve tried to adopt this, but it’s challenging given the unpredictability of a litigation practice.

Hopefully, these 4 strategies will help me stay out of my shell and not find myself dead in the water whenever a particularly time-consuming case resolves.

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Should California Limit Length of Depositions?

California Assembly Bill 1875 would limit the deposition time to 7  hours, thus mirroring the Federal Rule.  There is currently no limitation at all for cases pending in California state court.  Is the proposed 7 hour limit a good idea?

My experience tells me that most depositions in many kinds of cases can (and definitely should) be completed in less than 7 hours.  That said, I’ve had the issue repeatedly arise in employment discrimination and sexual harassment cases in which the plaintiff’s deposition cannot reasonably be completed in 7  hours.  In fact, the plaintiff’s deposition in a sexual harassment case involving multiple instances of conduct allegedly occurring over the course of 3 years could not be reasonably completed in less than 20 hours.

The good news with this California legislation is that it would exempt cases involving employment issues or which are deemed complex.  It would provide the parties a choice to opt-out by stipulation.  Expert depositions would also be exempt from the limitation.

The stated purpose of the bill is to prevent attorneys from deliberately using the deposition to harass a party or witness or needlessly increasing the litigation costs of a case.  I’m not so sure.  While I’ve felt that some attorneys could be more organized with their examination and sometimes they seem to dwell on areas that ultimately bear no fruit, it is important that examiners not feel unduly rushed or constricted.  I could probably count on one finger or less the number of times I’ve honestly felt that an examiner was dragging out a deposition for a purpose other than legitimate fact gathering.  As far as harassment goes, I bet most people find the entire deposition process to be an exercise in harassment.  A lawyer intent upon harassing a deponent can do so as easily in 7 hours as 10, so is the law necessary?

On balance, I think members of the bar should think and act like professionals.  We should not engage in harassing behavior.  Nor should we drag out the length of a deposition unnecessarily.  If somebody gets out of line, there are remedies available, including a protective order and/or sanctions.  But I’d like to think we can govern ourselves without the need to be overregulated.  So let us decide for ourselves how long it takes to complete a deposition.

Oh, and please don’t ask after the first hour how long I think I’ll take for my examination.  That is just soooo annoying.

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When Collecting On A Judgment Can Be A Dish Best Served Cold


Imagine spending good money, effort and frustration to obtain a judgment only to realize it will cost even more good money, effort and frustration to collect the judgment.

Sometime back I obtained a judgment on behalf of a client against a “serial” restaurateur.  I say “serial” because, although he was good at partnering with the right chef, choosing a key location and creating a terrific vibe, the restaurant business is about as fickle as it gets.  Inevitably, the chef quits, the location becomes unfashionable and some other joint creates a better vibe.  This was the case with our defendant–let’s call him “Tony.”

As soon as we got our judgment against Tony, I recorded an abstract in every county in California, hired an investigator to profile his assets and set a judgment debtor examination.  The investigator identified a couple of bank accounts, nothing else.  I had to practically hire Jason Bourne to stake out Tony and serve him with the summons for the judgment debtor examination.*  I did the exam (at the end of which I had the judge order Tony to give me the contents of his pockets, $128 in wrinkled bills).  The judge also granted my request to levy Tony’s Omega watch and Vespa scooter.

I then started the form-and-delay-laden process of trying to levy his bank accounts.  Being in the restaurant business, Tony habitually drained his checking account and had no savings.  When I subpoenaed him to bring his bank records to the judgment debtor examination (a practice I HIGHLY recommend), the records revealed that Tony almost constantly maintains a negative balance .  We tried a couple of times just the same, and collected less than nothing on each try.

I sat down and had a heart-to-heart with our client.  Fortunately, it had not been particularly difficult or expensive to obtain the judgment.  Tony had failed to make payments on a promissory note and did not contest the lawsuit, leading to a simple default judgment.  The problem was, it looked like it was going to cost our client a lot to collect.  Tony was not anyone’s “employee,” so garnishing his wages was not an option.  He had “arrangements’ with investors who could loosely be called partners, but no partnership agreements exist, so we could not get a charging order.  A till tap was another option but, again, expensive.  There are ways to get to Tony** but, again, it wasn’t going to be easy or, more importantly, cheap.  So, with the client, we explored a third option: patience.

Time is on our client’s side.  Simple interest on a judgment accrues at a rate of 10%.  Finding an investment with a constant 10% return is challenging.  If Tony was not broke our client might have collected right away.  But, assuming he did not immediately spend the money, could our client find an investment with a 10% return?  Tony might have a bright future.  He does have a knack for creating a hip vibe, which can carry a restaurant pretty far in Los Angeles.  Even if he never kicks ass, though, he might in five years or so get a steady job where he collects a regular paycheck that we can garnish his wages.  If it takes 10 or more years, the client simply needs to renew the judgment.  It’s not immediate and it’s not sexy, but it might just get our client his money back with some decent post-judgment interest.

*Yes, I do occasionally resort to hyperbole.
**Broken kneecaps being one.

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How I Almost Got Sucked Into A Nigerian Scam

This is a cautionary tale.  I now get so many Nigerian scam invitations by email that it’s hard to remember a time when they weren’t so common.  I get one or two every day.  But a while back, before they were so ubiquitous, I came pretty close to falling for one.

Any lawyer who is or has been a junior partner at a BigLaw firm knows what it’s like to be hungry for business.  The prospect of single-handedly bagging a big institutional client is just too attractive to pass up.  It can cloud your judgment.  I woke up one morning and checked my Blackberry or iPhone (can’t remember which at the time) and saw that I had an email from a company headquartered in China.  I couldn’t tell from the email what their business was, but the email was professionally, if stiffly, written and devoid of obvious grammatical defects.

With some variation, most of us are now familiar with the fictional come on:  they’re a foreign company that is owed a sizeable, but not unreasonable, amount of money by an American customer.  They’re looking for counsel to assist in collecting the sum.  It is anticipated the customer will ultimately pay what’s owed, but litigation may be required and, besides, they need to have counsel in the United States to handle commercial issues which arise from time to time.  Most important for my purposes, the email said right up front that they were prepared to pay a retainer.  Would I please contact them?

Looking back, the “it’s too good to be true” light was blinking all along, but, remember, I was hungry for a big institutional client.  Of course I responded, asking for details, trying to set a call, etc.  I looked up the company on the internet and the website looked legit and exactly like what I expected the website of an Asian fabricator and exporter of miscellaneous nuts and screws and other parts would look like.  The kind of solid, reliable, bill-paying institutional client every young commercial litigation partner wants in his or her book of business.

Within a day, I had an exchange of correspondence, scheduled a call and agreed upon rates and terms of engagement, including a $10,000 or $15,000 retainer (can’t remember now).  I had also performed an internet search on the American customer/defendant.  Here, again, the website looked like the legitimate website of a legitimate middle market American company that purchases metal nuts and screws and other parts from a Chinese supplier and incorporates them into shelving and dividers that are sold to other larger companies for use in their warehouse facilities.  Nothing sexy, but by all accounts a legitimate, going concern.

Looking back, I should have been more attuned to the little hints along the way.  The name of my contact, for example, vacillated between “Kevin” or “Kelvin” in the emails.  While it took several tries to have a successful telephone call, I was ultimately passed by a Chinese-sounding receptionist/operator to a man who identified himself as “Kelvin.”  He was brief and slightly difficult to understand, but sounded like the real-deal.  We advanced the ball and there was good news from the client’s perspective: the American customer had agreed to pay what they owed (around $273,000, I believe), but I would facilitate the transaction, acting as an escrow of sorts.  The check would be sent to me.  I would deposit it in the firm’s client trust account, retain the retainer amount (again $10,000 or $15,000) and wire the balance to my new client.  I would then be “on retainer” and prepared to handle their North American litigation needs which were sure to arise in the future.

I became sure that something was awry about a week after the initial contact, but before the check arrived from the American customer.  I received another, completely separate, email from a different Asian company also looking for representation in a similar collections-type situation.  I looked this “new” company up on the internet and, you guessed it, they also sold screws and nuts and other little parts.  In fact, although the company had a different name and contact information, everything else about the website was identical to my new “client.”

At this point, I just wanted to see how it played out.  I never in a million years would have gone through with the scam, but I was curious how these things are done.  At what point do they realize their “mark” has caught on and throw in the towel?

At about the expected time, I received a Federal Express envelope from the correct address in New Jersey containing a completely legitimate-looking cover letter, complete with “wet” signature and a check drawn on the corporate account, payable to my law firm, for $273,000.    Still curious, I placed a call to New Jersey, to the person who purportedly signed the letter.  I was amazed when the call went through and still more amazed when the person who answered was a mature woman with what seemed to be an authentic New Jersey accent who was willing to talk with me, not just about the details of the check, but also about her day and plans for the weekend (it was a Friday afternoon).  I sent the “client” an email reporting that I had received the check, was depositing it, and would wire the money as soon as the customer’s check had cleared.  (“Kelvin” had suggested I wire the funds as soon as I received the check, but he didn’t press too hard on this point, probably concerned I would smell a rat.)

I asked our office manager to deposit the check in our client trust account.  When she came back I asked, “Any problems?”  “Nope,” she said (I had not yet told her I suspected a scam).  A few minutes before close of business, though, she came back into my office.  She was ghost white.  She’d received a call from Wells Fargo and, surprise, it turned out the check was fraudulent.

I took her through the details leading to the check, including my phone calls with China and New Jersey.  She was intrigued, but looked at me strangely, as if to say, “You weren’t really going through with this?”  I also called the local FBI field office.  Because it was late on a Friday I had to leave a message.  No one called me back.

I’ve since read that lawyers–big firm lawyers and solos–have been stung badly by these scams over the years.  They give in to the fictitious client’s request to wire the funds before the incoming check has cleared–only to learn later that the check wasn’t real.  What I found most astounding about the experience myself was how coordinated and detailed the props and communications were.

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In an August 3rd profile of high-end family law practitioners Daniel Jaffe and Bruce Clemens, the Los Angeles Daily Journal quoted these lawyers as citing five important areas for litigators:

“A lawyer has to know people, know financial issues, know the law, know how to try a case and know how to settle a case. . . It seems obvious, but there are very few lawyers who have high skill levels in all five.  If you don’t have all five and the other side does, your client is at a disadvantage.”

Does your lawyer have all five? I like to think I’m solid on four of them, but complex financial issues–for which an accountant would be required anyway–may not be my forte.   Of course I don’t practice family law.

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Don’t Squander Your Unearned Reputation For Honesty

It is simply too easy for lawyers to quickly lose credibility within the bar and before the judiciary. It seems we’ve already lost this battle with much of the public, but within the profession I like to think we begin our careers with an undeserved presumption that most of us (at least those without the last name “Madoff”) are straight shooters. This presumption should be nurtured and guarded for the gift it truly is.

A lawyer’s individual reputation for honesty is as important, if not more important, than his or her intelligence or skill set.  Why? Most of us quickly learn that if we’re out of our comfort zone skill-wise, we have choices.  We can involve another, more experienced practitioner.  Or we can double up on our research until we completely understand an issue or area.  Skills can be improved.  The same is not true for reputation.  Once our reputation for honesty is placed at risk, it is nearly impossible to fix.

The easiest way to lose credibility is almost too obvious to mention: to be untruthful, even about the most trivial detail. It’s not necessary to falsify documents or manufacture evidence; a lawyer’s reputation for honesty can be ruined simply by stretching the truth when “memorializing” a telephone conversation. We hang up, I read your letter, realize you’ve mischaracterized our discussion and from that point forward I don’t trust a word you say. Worse, when my law partner mentions ten years from now that he’s got a case against you, the first thought that comes to mind, which I surely share, is that you’re not to be trusted. And just like that, you’re no longer trusted.

Being untruthful with the court is even more dangerous.  Setting aside the risks of sanctions, contempt, complaints to the state bar, etc., judges have institutional memory which can follow you your entire career.  Just as I’ll tell my law partner that you can’t be trusted, judges do talk, and have lunch together and, I am informed, discuss their cases and the lawyers appearing before them.  Let just one judge conclude that you are a lawyer capable of lying to the bench and that alone could devalue any statement you ever make in the same courthouse or even jurisdiction.

Many lawyers believe we only have our time and intelligence to sell on the open market.  I would add that neither time nor intelligence have any value at all without a reputation for honesty.  Once we lose the trust of our colleagues and judges, everything about the practice of law becomes more difficult, especially winning cases and getting referrals.  Don’t risk it.

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Don’t Serve Discovery Unless You’re Willing to Go to the Mat For A Response

One of the illusions I harbored as a young defense lawyer was that it was a good idea to “paper” the other side with as much discovery as I could serve.  This derived, I think, from stories I heard and read during law school how the biggest, most powerful litigation firms always practiced this way, which led me to think it must be the right thing to do.  I think also that, as a young associate, I was always looking for ways to maximized billing opportunities.  Actual strategy rarely entered the equation.

I once even made a ridiculous statement to a senior partner, when we were up against a legendary plaintiff’s firm, that we would “serve the other side more discovery than they had ever seen.”  Quite correctly, the partner responded that no, we would not be serving more than the other side had ever seen, and no, we were not going to waste our time, energy and client’s money trying.  He was absolutely right.

My view on written discovery has evolved to where it should be a tool used more like a scalpel than a weapon like shotgun.  As I’ve grown from the associate who has no connection to the bills that go out to a client to the relationship partner who actually sends those bills (and has to manage the client and its expectations when the bill is outrageous), I realize that we don’t (or shouldn’t) do anything just for the same of doing it, or because that’s how it’s done by others (even others at prestigious litigation firms).

I’ve also learned that most clients have a somewhat fixed budget for dealing with a matter.  Whether the budget is hard or soft, it’s not there to be exceeded–unless you want to lose the client.  There is never spare money in any budget to cover tasks that aren’t calculated to lead directly to a better result.  So every task, not just discovery, needs to be calculated to advance the ball.

On the receiving end of written discovery (I’ve been there a lot, too), I’ve never in 20 years been “intimidated” because the other side served an onerous set of discovery.  In fact, quite the opposite is often true.  An opponent who serves 100 “shotgun” questions or requests that are unfocused and a pure waste of time is revealing to me that he/she has not developed their strategy enough to know what they need to find out.

My view has evolved to where I try to limit discovery to information that I believe will directly benefit my effort to win the case for my client.  If I’m on the plaintiff side, I will look for information that will help me establish the elements of my client’s case.  I focus heavily, too, on trying to establish that my opponent does not have any evidence to prove one or more elements of his/her/its defense.  The same holds true, only opposite, if I’m representing a defendant.  This is elementary, but I’ve seen a lot of discovery (and written some  over the years) that strayed pretty far off topic.

If I’ve limited the discovery I’ve served to information I really think is important, I have no problem going to the mat (meaning all the way through motion practice, if necessary) if my opponent gives me BS objections and/or provides an insufficient response.  Back when I was writing loads of unfocused discovery, the other side did the obvious (objected, refused to respond, etc.) and I found myself having to decide if it was worth the time and expense (and risk, if I lost the battle) to go to court over it.  If it wasn’t worth that effort and cost if the opponent balked at responding appropriately, how could I justify having written the discovery in the first place?!?

This is just another example of how we (hopefully) learn and evolve in how we practice our craft as we gain experience.  By making this fundamental shift in my attitude about discovery, I’m not only giving my clients far better value, but I’m also not telegraphing to the other side–with a huge, random set of shotgun discovery questions or requests–that I don’t have a clue what I’m doing.

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Why You’re Better Off Against A High Quality Opponent

I ran across this post by Karen Koehler, at a blawg I really like, The Velvet Hammer, which highlights something I’ve known for a long time: you’re far better off trying a case against an experienced, high quality lawyer, than someone who’s a newbie or careless, or both.  Karen draws on her experience trying a case against a really poor defense lawyer.  She won, but in the post-verdict discussions with the jurors she learned that they felt so sorry for the defendant because she had such a bad lawyer that they felt they had to “even things out.”

I echo this sentiment, but I would also broaden it to include everything from the filing of a complaint through trial.  “Challenged” lawyers make our job harder–and the case more costly–from day one.  They don’t know the value of the case, its strengths or weaknesses, so they can’t every talk realistically about settlement (forget about actually reaching an early resolution).  They don’t follow the rules, so it’s up to the responsible lawyers to comply with the rules, including venue-specific or judge-specific procedural nuances.  It seems like they’re never available to address anything substantively.  They fight battles over the wrong things–again wasting time.  They file improper briefs, like sur-reply briefs, complete with brand new evidence, which fouls up the entire process.

We all started somewhere.  I was fortunate to have great mentors and some really great training (which didn’t prevent me from still making some stupid mistakes).  But the goal should be to improve and try to learn from mistakes, not to keep making them.

Lawyering is like tennis in that the quality of your opponent brings out the best in your game.  I’ll take a Federer or Nadal any day.

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Tarle v. Kaiser: You Must Oppose Objections to Argue Them On Appeal of Summary Judgment

Anyone who has argued a complicated summary judgment motion knows the challenges of making sure the record is robust to provide for appellate review, if necessary.  This is particularly true given increasingly “jammed” law and motion calendars, which sometimes cause judges to encourage counsel to make oral argument brief.

Against this background, the Second District California Court of Appeal issued an opinion last week which highlights an important rule when briefing or arguing summary judgment motions.  In Tarle v. Kaiser Found. Health Plan, Inc. (2012 WL1850926), an employment discrimination case, the employer moved for summary judgment.  The employee opposed the motion, including submissions of 750 pages of evidence.  In reply, the employer submitted 335 separate objections to the plaintiff’s evidence.  Despite a second hearing and briefing opportunity, the plaintiff did not specifically oppose, in writing or during oral argument, the objections to the plaintiff’s evidence.

The trial court sustained nearly all of the objections to plaintiff’s evidence and granted summary judgment.  The plaintiff appealed and tried to raise the issue of the court’s sustaining of defendant’s numerous evidentiary objections.  Although the Second District Court of Appeal reversed the summary judgment (on separate grounds), the appellate court barred the plaintiff from arguing the objections, based on her failure to argue orally or in writing against the objections at the trial court.  It said.  “We conclude that a party who fails to provide some oral or written opposition to objections, in the context of a summary judgment motion, is barred from challenging the adverse rulings on those objections on appeal.”

This opinion reinforces the importance of presenting an organized oral argument on summary judgment motions.  Where a judge is “rushing” counsel to make their argument unduly brief, it may even become necessary to take steps to assure that the record reflects this fact (which, itself, could raise an impatient judge’s ire).  Tread carefully!

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What You Want To Know About Your Opposing Counsel, Part II

In addition to learning as much as I can about my opponent and the nature of his or her practice through his or her website, I also use the following resources to do more research:

4.  State Bar Information.  It’s pretty rare, but I do occasionally come up against someone who’s been disciplined, even suspended.  There are a number of reasons why a lawyer can be disciplined by the Bar, and it doesn’t always signify anything I consider relevant.  But it could, so I try to find out as much as I can.  For example, if the discipline has related to commingling client funds or failing to communicate with clients, it could mean the lawyer does not make it a priority to communicate with his or client.  This could become important later, if we get into settlement discussions and it’s critical his or her client is being kept informed of my client’s offer (or demand).  Information about Bar discipline is typically available on the State Bar website.

5.  Track record.  Does my opponent try cases?  This may not be readily apparent, but if I review the jury verdict sheets (I still use the paper kind) I can sometimes see if he or she has tried any cases in recent years and, if so, what kind of case and what was the outcome.  This information isn’t always available.  But if it is, it can be very revealing.  For example, it might show a pattern of taking meritless cases to trial and losing (or barely wining).  This becomes important when evaluating the likelihood of an actual trial later.

6.  Reported cases.  Has my opponent participated in any appeals that led to reported opinions?  Actually, Lexis and Westlaw even report cases that are not officially published, which further broadens the field.  If he or she was the sole attorney representing a party on appeal, this tells me that he or she probably has a fairly in-depth understanding of the issues and law in that kind of case.  If our new case involves the same issues, this is important information for me.

5.  Finally, I may send an email to some close colleagues and see if anyone knows or has dealt with my opponent before.  This can provide a great deal of useful insight.  One thing I’m looking for in particular is my opponent’s reputation for honesty or civility.  Is he or she someone I can trust when they promise to communicate an offer to his or her client?  Will I encounter resistance if I seek a reasonable extension or continuance?

From this information, I can generally get a decent “feel” for my opponent before I pick up the phone to call him or her and introduce myself (which I always do).  Over the years, I’ve found different information useful for different reasons.  Often, however, I know I’m going to be looking for leverage against my opponent or his or her client.  This can come from a variety of sources, including “situational leverage,” which I will discuss in future posts, such as a disinclination or financial  inability to take a case through trial.  The earlier I learn this the more I can shape my defense accordingly.

One factor to which I never give any weight, which some might find surprising: where my opponent attended law school.  I’ve encountered lawyers trained at the very best (ranked) law schools who had trouble knowing where to sign their last name, and really first rate lawyers who attended lesser ranked law schools.  I usually find experience level to be a far more telling predictor of competence in the courtroom than law school ranking.

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Why Your Lawyer Must Be A Strong Writer

Few would argue with the suggestion that a crucial skill for any lawyer who makes a living helping clients resolve disputes is the ability to persuade.  Anybody can look up a case.  And, while novel arguments or clever strategies can enjoy a certain symmetrical beauty, the ability to persuade, to sell, is ultimately what separates a good or great lawyer from the merely adequate.  To this premise, I would add that the ability to write, to string together sentences in a clear, articulate and persuasive manner, is the most crucial skill of all and one clients should absolutely insist upon.

Why is writing such a critical skill to our trade?  Conceptually, persuasive writing doesn’t just require a command of language, it compels organization.  Even a point delivered orally requires a structure, if it is going to persuade.  Clear writing always embodies this structure.  It reflects the ability to conceptualize and frame an argument.  Like the frame of a house, a clearly framed argument helps guide the reader—often a judge—follow on the journey to the desired conclusion.  It lays a firm foundation for the real magic which, in the context of the law, is the synthesis, or interweaving, of evidentiary facts with a governing rule.  There is no substitute for the ability to organize and frame an argument.

In modern civil disputes, it is always a written instrument—a complaint or claim—which sets a case in motion.  While it’s certainly possible to win a massive verdict or coax a settlement out of a case premised on an inartfully drafted complaint, the complaint frames the issues, sets the tone of the case, and introduces the parties and their lawyer.  If the complaint is sloppy, exaggerates or overreaches, it underwhelms both the judge and the lawyer on the receiving end.   The judge may become prejudiced.  Equally important, there can be a subtle, almost imperceptible, shift in the balance of power between the opposing lawyers.  Respect between counsel must typically be earned; it is rarely presumed.

Most crucial of all, ask any civil trial or appellate judge and you will hear that, in all but the rarest instances, an argument is won or lost on the quality of the papers.  This is not to discount the importance of having favorable law or facts.  But good law or compelling facts are worthless if your lawyer has not articulated them in a clear and persuasive manner.

Clients should demand their lawyer have impeccable writing skills!

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