And no, trial skills isn’t number one.
Let’s start with what a trial lawyer is. A trial lawyer is an attorney whose bread and butter it is to walk into a courtroom and effectively argue for the results his client seeks. It sounds simple, but there are a lot of skills that go into being a good courtroom lawyer, and what might surprise you is that most of those skills are more useful outside the courtroom. Here are what I consider to be the five most important skill areas for a good trial lawyer.
Issue spotting. The mark of a good trial lawyer is a person who can take the facts of a case and dissect them, identify every strength and reveal every weakness. Issue spotting is a creative process where a lawyer looks at the case from a number of different angles and discovers all the possible ways that he could put up a fight. When you are interviewing a lawyer about taking your case, watch his or her reaction to the story you tell. Does he start immediately throwing off ideas about how the case could be fought? Or does he immediately jump to why you are going to have to settle for a result you don’t like? The lawyer with ideas is the better issue spotter, and that lawyer will probably make a better trial lawyer.
Legal writing ability. Legal writing is an art form. Not one that many people find too enjoyable to read, but nonetheless, it requires skill, clarity, and a gift for being persuasive in writing. While any lawyer can throw facts on a page and cite cases they believe to be important, that’s a far cry from the ability to craft a persuasive document that is convincing to a judge who has probably heard it all before.
Negotiating. Most court cases that are ever filed end up in some kind of settlement. Civil cases end up with cash settlements. Criminal cases end up with plea bargains. Only a fraction of cases actually go to trial. That means it is extraordinarily important for your lawyer to have good negotiating skills. How much money you get, or how much time you serve, is going to depend more than anything on how persuasive your lawyer is at negotiating with the opposing attorney. A good negotiator is not just a lawyer who can see what is good about your case, he’s the guy who can see the weaknesses in the other side’s case and won’t hesitate to point those out to the opposing lawyer. This is often a very subtle process. “Trash talking” is only going to get the other side’s ego involved. Negotiation is like seduction. You have to learn to make the other side want to give you what you haven’t asked for.
Trial skills. Just like a police officer carries a gun that he doesn’t often have to use, a good trial lawyer has to have skill and confidence to take a case all the way through trial if you don’t get what you want through negotiation. A trial is a kind of theater, a sort of ritualized improv. Your lawyer needs to be able to act, think on his feet, speak well, assert dominance, and maintain focus. He has to know all the rules of the game, all the rules of evidence, all the facts of the case, all the rules of law, but never lose sight of the one single theme of his case. He has to keep track of a thousand things, while seeming calm and relaxed. Trial is not easy, and a lot of lawyers who do it for a living are not very good at it. Choose carefully. A lawyer with a big ego and a lot of charisma is probably your best bet.
Interpersonal skills. A good trial lawyer has to have good people skills, and I mean something more than just being a “people person”. A good trial lawyer needs to be able to effectively read the emotional tone of any situation and respond appropriately. In every day life, most people try to be “nice”. While a good trial lawyer should be a congenial person most of the time as well, there are times in legal matters that call for a tougher, harsher, aggressive, or confrontational approach. A good trial lawyer knows when to be tough and when to be kind, and is effective at both.
No doubt other lawyers would want to include other items on the above list. Good legal research skills, an ability to organize large amounts of information, strong investigative instincts, computer literacy, and so forth. While I would agree that the above list isn’t all of the skills necessary for a good trial lawyer, I believe that they are the most important. If you find a lawyer who is confident, friendly, and good at spotting issues, persuasive in speech and writing, and expresses an enthusiasm for fighting cases all the way through to trial, chances are you found a pretty decent lawyer for your case. If the lawyer you are talking to seems to be lacking in any of these major areas, it might not be a bad idea to consider looking somewhere else.
Let me know what you think. What skills do you think a good trial lawyer needs to have?