Monday, January 26, 2009

What Makes a Good Trial Lawyer

by Kelly Siegler

The opinions of individual trial lawyersif asked what makes a lawyer a good trial lawyer—would be as varied as their own egos. Most laymen and the average citizen called down for jury duty probably assume that all lawyers are good trial lawyers or ought to be anyway. Isn't that what they are paid to do? And way too many lawyers who call themselves trial lawyers, when they aren't, would in some way try to describe themselves in answering the question.

The simplest answer I've given before when asked this question is "
preparation." While that is certainly true and a huge part of what makes any trial lawyer good at what he does, preparation alone could never explain it completely. Or even come close. Lots of lawyers try their hardest to be prepared. But does that necessarily carry over to the "presentation" aspect, the part that catches a juror's attention convincingly? Does preparation lay the groundwork for a sought after verdict, even most of the time?

Probably not.

Then what does?

Eloquence perhaps. Tenacity. Aggressiveness. Intelligence. All of these qualities would seem to answer the question.

So do qualities like having a photographic memory or having a way with words. Having a commanding presence in the courtroom certainly helps.

Whatever adjectives you or others might use to try and describe what makes one lawyer a successful trial lawyer where another is not are probably all good answers. But what is that ONE quality or trait or characteristic without which a given trial lawyer fails to pass the test most of the time??

I believe it is the ability to know people.

To empathize with them. To understand what they must be thinking as you put on your case. To appreciate their unique perspectives. To see and hear your evidence and the opposing lawyer's case as if you were inside their minds and their hearts.

To evaluate what is going on inside the courtroom critically from someone's point of view besides your own.

Where does anyone, lawyer or not, get such a trait or ability?

Are you either born with the ability or not? Can a good trial lawyer lose such an ability the more successful he becomes if he allows himself to lose touch with his "old" way of thinking? Don't some people simply have no clue of what it means to understand others' perspectives?

Are how you are raised and where you are from two of the most important contributors to being able to understand, empathize and appreciate other people's opinions?

I would say that they are. For whatever reason someone might have been forced to or called upon to "get along" in the world or "adjust" to a difficult situation, contributes directly to making him deal with human nature. Because to deal with human nature, you have to try and understand it.

Then, when it comes time as a lawyer in a trial to critically decide which citizen would best serve as a favorable juror, you have a better understanding of that juror's possible perspective in viewing your evidence. As any witness testifies, you have a better appreciation of how that witness comes across to twelve, normal citizens. As you interview and prepare your witnesses for their time on the stand, you can prepare them in ways that others might not be able.

If you understand people, you have a different grasp of the words that not only might appeal to them, but also sing to them and stay with them.

Long after any trial lawyer has left the courtroom.


FleaStiff said...

J.J. "Jake" Ehrlich famed trial attorney of years gone by is said to have referred to a trial as being on-stage with an audience of 13.
During voir dire one venireman was asked if he knew anything about the defendant and immediately replied "I know he is guilty as hell since otherwise he wouldn't have you as his lawyer". Although this is clear grounds for excluding him as a juror, Jake Ehrlich immediately replied "Well, thats an honest answer and if you are an honest man we want you on the jury". That particular juror later became the juror who convinced others to vote the defendant Not Guilty.
Jake Ehrlich simply knew how to 'read' people.

dcheryl83 said...

Quick question for you Kelly. What exactly does "Prosecutor For Hire" mean?

kelly said...

Hi dcheryl83. Good question. Actually every time I see that label, I think to myself that I need to change it. Jenna Jackson started the "name" when I joined the group as a kind of funny title since I don't have an "official" one. I was a prosecutor for over 21 years, have recently acted as an appointed special prosecutor in a death penalty trial and am now involved in a wrongful death case representing the family of the victim along with another ex-prosecutor named Dean Blumrosen.

Anonymous said...

I don't discount preparation and intuition, as they are both essential elements of a successful advocacy practice. Notwithstanding, both can be delegated to a great extent.
What sets the great litigators apart is their innate courtroom presence. If the presentation is wanting, so will be the cause; courtroom charisma is what elevates great litigators to rock star can be honed but not taught.
Congratulations on your civil case(s)'s just a matter of time before you'll be a rock star in that arena as well.

Anonymous said...

Great post!
Who would you consider the best criminal defense attorney you ever tried a case against and why?
I used to read criminal defense attorney Mark Bennett's blog but stopped as of late because he seems so petty and full of himself. Have you ever tried a case against him and if so is he as good as he thinks he is?
Thank you.

Anonymous said...

A "good" - or maybe it is better to say effective - trial lawyer is no different than the top used car salesman in the country. ....
Effective Trial Lawyers are SCARY. They could sell a refrigerator to an Eskimo or Ashes to the Devil. --------
Unfortunately, Trial Lawyers are necessary when the essentail facts are subject to question. They are then needed to present their version of the questioned fact to a jury. ---------
Often the unfortunate result is that the true fact does not prevail, but rather, the most effective trial lawyer wins. Which is, as well, the one that can charge the highest fee and that few can afford.
There is LAW, and then there is what happens in the PRACTICE of Law.

Anonymous said...

Unfortunately, financial parity will never be possible in the criminal courthouse. However, at the very least we can provide better incentives to attract and retain highly qualified and ethical prosecutors. Too often the country's most "effective" victims' advocates are unable to afford sustained careers as prosecutors.

cricket said...

I hope that you or a loved one are never targets of a serious crime....but if you are, you will surely not degrade the relatively underpaid prosecutorial team that fervently seeks truth and justice for you and/or your loved ones. Truth, after all, is what should prevail if justice is rendered, correct?
A used car salesman's sole motivation is the greedy pursuit of the almighty dollar. His ideals are the antithesis of truth. There are many criminal defense attorney's that fit the bill but to throw prosecutors in the mix is nonsensical.