The Skills of an Excellent Lawyer
Just being a competent lawyer is hard enough. Being an excellent one requires commitment and dedication, and a deep yearning to keep improving and developing expertise in the craft. Skilled advocacy encompasses many different disciplines including technical legal knowledge, legal reasoning, procedural knowledge, psycho-social deftness. and performance skills. All these and more must be mastered to be effective in difficult cases.
Preparing the Case.
One of the most important aspects of preparing a case is developing a cohesive “theory of the case.” A theory of the case is a one-sentence, emotionally compelling, narrative that drives the decision-maker to find in your favor.
Preparing a winning theory of the case requires knowledge of the law as well as of all the relevant facts. Even one powerful fact that is inconsistent with the theory of the case can destroy it.
Preferably, a great theory also includes what the late Judge Ralph Adam Fine calls “legal jiu-jitsu,” the technique by which a skilled advocate uses the adversary’s strength against them by converting their greatest strength into their greatest weakness, and converting the advocate’s own weakness into a strength.
Developing such a winning theory requires the use of strategy, knowledge of the law, and knowledge of human psychology. It requires the experience and foresight to predict how the case will play out and what must be done to defend against the opponent’s eventual counter. It requires an honest, balanced, disinterested assessment of the strengths and weaknesses of each side of the case. And, of course, wisdom and judgment. Most people who feel besieged are unable to take a fully balanced view, bound as they usually are, to their own passionate positions, unable to consider the other side’s view of things.
The practice of law is not arithmetic and how the judge “feels” about the case (and, unfortunately, the litigant) is as important as what the law says. There is no other area of law where the Court has as much leeway and discretion as it does in family law.
Moreover, the secret that master litigators know is that litigation is as much about emotions as it is about technicalities.
Many people mistakenly believe that the law is immutable and that it clearly compels a particular result in every case. Master advocates know that it is more important to present an emotionally-compelling case to a judge or jury, one that leaves them feeling that to not rule in the advocates’ favor will do a grave injustice. That the technicalities merely give the judge or jury the ability to rule in the advocates’ favor; the motivation to do so, must come from the emotional story of the case.
Thus, even if a litigant is able to master the “arithmetic” of the case, and knows the winning argument, too often the litigant cannot make the judge “feel” the injustice and therefore stands a grave chance of losing.
The competent advocate must master many disciplines.
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To represent someone competently, and advocate must master many legal and practical areas. These include:
A. The substantive law governing all of the issues involved in the matter. What needs to be proven (known as the “elements” of the cause of action) in order to prevail? For example, to be awarded custody a Court will look for the “best interests of the child.” What issues have been included by the Courts in a best- interests analysis? Each point in contention will be governed by certain controlling law and the advocate, to be effective, must be familiar with the law, its application, and its exceptions;
B. The procedural law. How do you get things done in a Courtroom? When must a formal motion be made? When must a motion be made by an Order to Show Cause? How are the different motions made? What are the differences between them? How much time do you have to answer a motion from the other party? Although these are only the “rules of the game,” if you don’t know which way to run after you hit the baseball, you won’t be able to win the game.
C. The rules of evidence. Completely aside from the rules of procedure, there is a separate body of law controlling the admission of evidence in Court. It is a sufficiently complicated area that law schools devote a full four-credit course to it. It includes the notorious “hearsay” rule, a simple several-line rule, with several exclusions and dozens of exceptions. It also includes the methodology of establishing foundations for the evidence that a party seeks to offer into evidence.
Burdens of proof, standards of proof, and burdens of persuasion.
In addition to the elements of every cause of action that a party needs to prove in order to prevail, a party needs to consider who, among the litigants, bears the burden of proof on any particular issues. The law has several different standards of proof that apply to different matters and, although burdens of proof are constant upon whatever party bears it, the burden of persuasion shifts as testimony and evidence are introduced.
Courthouse- and, what we call here in New York, Part rules. Each Courthouse, and each Part (Courtroom) within the Courthouse, can publish their own rules that control the Courthouse and the Courtroom, respectively.
The custom and practice of the Courthouse or judge. Some courthouses have their own convention or way of doing things that are not denominated in their published rules. Some judges have preferences, and are annoyed with the preferences are ignored.
General court decorum and “batting order.” In addition to all the formal rules above, there is a general, formal, custom and practice about how to behave in a Courtroom. Moreover, there is an established “batting order” about who goes first and what happens next. As with the rules of procedure above, not knowing the lineup and being prepared for the proper order can have severe consequences.
Proper protocol and technique for effective direct examination. There are specific, detailed rules for proper direct examination and improper questions will not be allowed. In addition to the formal rules, there are advanced techniques to make direct examination more powerful and leave a more lasting impact on the fact-finder.
Proper protocol and technique for effective cross-examination. Like direct examination, cross-examination has its own set of rules and protocols, and techniques on how to effectively destroy an unfavorable witness. (The rules of direct and cross-examination are generally encompassed within the rules of
evidence but because of the skill and technique required to do it well is a separate study, they’re broken out separately here.)
Protocols and techniques for making effective opening and closing statements. Like with other areas, many books and courses are devoted to each of these elements of trial practice. There’s a good argument that all cases are won or lost at the opening statement.
Closing statements, of course, drive all of trial preparation.14
Strategy and tactics, Game Theory and The Art of War.
Raconteur and the art of storytelling.
Creativity
Stability and clear-headedness (to balance the creativity).
Flexibility and nimbleness.
Scholarly.
Devotion and commitment to exert the mighty effort required to master and succeed.
The Formula For Success: Substance (technical, psychological, & interpersonal skills) + Skill + Hard Work + Creativity +
Flexibility/Nimbleness = Exceptional results for our clients.
The skills of advocacy. The practice of law requires art in addition to mechanics. It is a mistake to view litigation as an arithmetic or mechanical problem that can be solved with logic alone. Two lawyers can make the same argument to the same judge in the same case, and one will lose and the other win. It is a mistake to think that all that needs to be done is to pipe up, “Two plus two, your Honor,” to have the judge conclude “Four, of course,” if that is in your favor. Like in chess, the same winning move made just a moment too soon or a tad too late can lose the game. Except that advocacy is even more sensitive. The same winning move made with a different tone or inflection can lose the game.15
The Job of the Lawyer in an Adversarial System.
Many people mistakenly believe that judges know all the laws. Some smart ones might. Many more do not. The “job” of the lawyer in our adversarial system is to “teach” the judge everything the judge needs to know to make the “right” decision.16
The job of the other lawyer is to teach the judge everything she needs to know to make that side’s right decision. All the judge really should have to do is to point to one side or the other and declare, “You’re right.” That may sound easy, but it’s not. Well-litigated cases pose only hard calls for the judge to make.
To learn more about this or another topic relating to divorce and family law, check out our free Free New York Divorce Guides or call us today at (212) 964-6100!
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Of course, you will need a skilled lawyer to protect and defend you and your rights. Call our offices for a free telephone consultation and to learn how we can help you. A Manhattan Family Law Attorney at Chaim Steinberger, P.C. can give you a solid foundation for meeting your goals during divorce, legal separation, annulment, and more.