September 01, 2015

Learning Good Judgment

Here are some guidelines to developing this skill that is crucial to success as a litigator.

Robert E. Shapiro

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Litigation is a curious business, isn’t it?—a strange combination of past, present, and future. The immediate focus is on something that already happened. It will be adjudicated by current legal standards. But it depends decisively on predicting and controlling the future. A litigator must look ahead, and foretell and manage the ups and downs, the ins and outs, of the dispute—from the very first day the matter arises to the day when, one way or another, it is resolved, with a stake through its heart.

The habits necessary for navigating the yesterdays and todays of litigation are learned early on. Every young litigator coming out of law school should already know the law, or at least how to find it. So too, she should become comfortable very soon with managing the day-to-day docket of court deadlines and routine hearings. It takes a little longer perhaps to learn how to build a sound factual record. But this kind of sleuthing can be fun and has now become far easier, if perhaps more tedious, given how email provides a nearly verbatim account of what took place. So, before long, most young litigators will have the necessary tasks of the first two elements of litigation well in hand.

This is not to say there are no real skills to master here. Courtrooms, not to mention docket clerks, follow their own special etiquette. You learn fairly soon that there is every reason to treat court personnel and court reporters with special courtesy, given how useful it can be to have them as allies. As for record building, you must forget the received wisdom of the rest of the world. A good record builder knows hindsight is never 20/20 but rather equal parts poor remembrance, prejudice, and wishful thinking. And when it comes to your client, you must trust but verify. In two or three years’ time, though, most young lawyers are aware of the booby traps and adequate to the task of building a fair summary of the critical facts.

It is the final piece of the puzzle—managing the future—that is wanting most of the time. It is not enough to know the law and the factual record. A good lawyer needs to know what to do with these bits of understanding as the case moves forward. This kind of special foresight we call good judgment, and it is always in demand.

A lawyer without good judgment, no matter how well he can build a record or knows the law, is of no more use than a racecar with a tipsy driver, whereas those who have it in abundance can sometimes turn a jalopy into a winner. But what is good judgment exactly? And where does one get it? Both questions are important, but neither can be answered simply.

In fact, they present a troublesome problem. False images of good judgment abound, and many young lawyers have the suspicion, even the worry, that they will never get it, no matter how hard they try. In the most basic terms, good judgment seems to be, or to be about, making good strategic decisions about a case or dispute as it progresses. How might you learn to do that? An excellent first step would seem to be to find a good mentor who can teach you by rule or example. But how does one distinguish the experts from the charlatans? Success might be one criterion, but it is a flawed one, as we all know lawyers who seem frequently to succeed through pure dumb luck. The facts, too, have a lot to say about who succeeds and who doesn’t. And even with a capable mentor, how do you know you’ve got what he has? And what is it he’s got? Don’t say you know it when you see it, because maybe you don’t.

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