I am sometimes asked what makes a good lawyer. There are so many different ways to be an effective advocate. I could never fully answer this question. It always depends on the audience. Every audience is different.
Before every interaction with the court, ask yourself what will be helpful to the court. “Always ask yourself what, if you were a judge, you would want the parties’ briefs to contain.” Richard A. Posner, Reflections on Judging 271 (2013). Include everything that answers this question and nothing that doesn’t.
Of course, give the court the things you think it needs to see things your way. But also give the court everything it needs to see the whole picture. If the court feels it hasn’t been given the whole picture, it is likely not to have complete confidence in your presentation. Sometimes after I’ve read an opening brief, there’s a moment when I’m reading the opposing brief and I think, Well, the situation is very different than I thought it was. That’s a hard position to recover from if you wrote the opening brief.
Be clear in what you’re asking for. Understand the elements of each cause of action you’re bringing, which remedies are available for each, and what needs to be shown to obtain each remedy. Then include that information in your brief. That sounds obvious, but lawyers often gloss over an element they don’t understand, don’t think is important, or don’t have good proof for. That weakness in their position stands out.
Have authority for whatever relief you’re seeking. If you can’t find any, ask yourself if perhaps that’s because the relief is not available. This should not be understood as advice against zealous advocacy. Zealous advocacy is crucial. But there needs to be a foundation for any argument. Appeals to the court’s inherent authority rarely work. Also, weak arguments undermine the credibility of your strong ones.
Anticipate your weaknesses and address them in your brief. Your opponent will surely bring up your weak points; why let your opponent have the first and potentially defining word on that topic?
Be collegial and courteous to everyone all the time. This includes your opposing counsel, court staff, the court, and complete strangers. Say thank you. If you can manage it, be friendly. If you can’t, at least be professional. Continue to maintain your professionalism and civility even when your opponent does not.
It is a fact that parties sometimes do things to make litigation more difficult for their opponents. Litigation is an adversarial process. But it’s best to avoid taking actions that make things more difficult for the court. Think two or three times before submitting overlength briefs or hundreds of pages of exhibits, much less poorly organized or assembled materials. Ask yourself whether these materials would help you decide a question favorably if you were the court or whether they would simply feel like an unnecessary burden. The same goes for disputes over trivial issues.
Calm down. A calm presentation conveys confidence. Being overly loud or excited makes you look worried or insecure. You might be upset or excited over something your opponent has done, but the court probably is not feeling that emotion. By simply reciting the facts, you may succeed in winning the court over to your side. Reciting those same facts in a tone of anger or entitlement is unlikely to make your presentation more persuasive.
Relatedly, pick your battles. If you fight about everything, then no one thing will ever seem important.
Be unflappable.
There is a difference between a judge and a jury as an audience. I can’t speak to what other judges find effective. I’m usually waiting to hear or read what the elements of a claim are and to be shown how they’re met (or not). Appeals to emotion are sometimes appropriate, but much more rarely than counsel think.
Act like you think the court’s time is at least as important as your time.
The loudest noise in the back of a judge’s mind is often “Whom can I trust?” There is no way for the judge to check every case citation or reference to the record in every brief in every case. At the end of the day, the court needs to be able to trust the attorneys. Be unflinchingly clear and candid in how you describe the record or the holding of a case. Attorneys who miscite the record or exaggerate a case or state the law to be something it isn’t not only damage their argument that day. They put themselves in a negative category that can last the entire case and even into future cases. Warren Buffett once said, “It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently.” These are words to live by. Once the court decides it can’t trust you, it’s very difficult to win back that trust.
If you want to be taken seriously, act like it. Don’t make frivolous arguments. Use speech that conveys competence, knowledge, and respect for the proceedings. Don’t be overly familiar. Avoid invective. Submit briefs that are free from typographical and other errors. Dress in attire that is appropriate to the environment. Wait your turn.
Know and follow the local rules, the standing orders, and any direction you receive from the court. Don’t attempt to decide which of the court’s requirements are important and only follow those. Assume they are all of equal importance. If you fail to follow a provision of the local rules or the court’s standing orders, the court will assume you’re not reading them. That shows a disregard for the court’s time and authority. It also sends the message, whether intended or not, that you think you have better things to do than read the court’s orders.
Quote the court back to itself with caution. It is often a mistake to think you know what the court had in mind when it decided a different case or even when it issued a prior order in your case. If you are going to quote the court, don’t paraphrase or reframe the court’s words. Don’t overplay your hand.
Don’t do things that the court has already told you not to do. Surprisingly, there are lawyers who need this advice.
Remember that even though you may be exasperated or feel umbrage, the court is unlikely to share your sense of exasperation or umbrage. If in doubt, adopt a poker face.
Know when to stop talking or when to stop writing. “Lawyers are suspicious of brevity.” Posner, supra, at 102. But the best talker is not necessarily the person who talks the most.
Constantly reevaluate your case with a critical eye. Take the possibility of settlement seriously from the inception of the case. A judge or jury will see both sides of the dispute even if you and your client don’t. Part of your job is to educate your client about this reality.
Don’t project overconfidence, but be enthusiastic. Have fun where you can. Remember, the path is long.
