Ten tips for effective counsel

By John E. Schiller, an attorney with Walter Haverfield LLP in Cleveland.

I am lucky to have worked with, watched and learned from a number of effective lawyers. I say effective because I am not sure what else matters when assessing a lawyer’s capabilities. I spend most of my time with clients who have a problem that they seek to solve. It might be an actual dispute, or perhaps only the threat of a dispute. The dispute generally involves a disagreement about what has happened and/or a disagreement over who is responsible and for what.

Attorney at Law signTo me the area of law has little bearing on whether I can be effective. As have many lawyers, I have litigated disputes dealing with myriad subjects and industries, including manufacturing, intellectual property, health law, trusts and estates, trade secrets, construction, real estate, shareholder and family business matters and even an outlier disability case.  I have adopted an approach (set forth below) that I suggest has contributed to effective advocacy and satisfied clients. I do not suggest that my approach is unique; to the contrary, I give credit to the many fine lawyers whose techniques I have borrowed and adopted over the years (and judges as well). If there is any substitute for a good mentor, I do not know what it is. 

1. Get a clear and complete understanding of your client’s problem.
That is done by listening, questioning, challenging and verifying. This is harder than it sounds. Not only do you need to understand the facts and know the applicable laws involved, but you also need to understand what is driving the people involved. The latter is an essential component to effective advocacy. Make sure your client has identified the real problem.

2. Care about the matter. To the client who has found its way to you, solving the problem is important. If you do not want the challenge and responsibility of solving the problem then send the client to someone who does. Caring about a legal matter in all phases sets the tone for all you do and ultimately how effective you can be. It also will determine whether the client ultimately trusts your advice and relies on your judgment.

3. Spend the time to understand the problem in its entire context. This includes understanding and appreciating your client’s status (individual, small business, corporation, partnership, etc.); the relationship between the parties (if any) and the nature of the dispute or claim; the amount of money involved (if that applies); the industry or nature of the participants; whether the claim is unique or likely to appear again; the likely witnesses; and how the dispute is generally dealt with in our legal system. All of the foregoing should be given due consideration when developing an approach to solving the client’s problem. Ignoring any one of these aspects of the matter can substantially impede your chance of a good result.

4. Do not be an imposter—spend the time necessary to understand what is going on and why.  Educate yourself. Think about all of the intended and possible unintended consequences of the various paths the matter can take. You are hired to solve a problem—not create or win legal skirmishes or battles, or worse, bill hours.

5. Do not stake out a position without fully understanding the dispute, its context, and as best you can, the facts and law. And even then leave yourself some flexibility. 

6. Listen and learn from the people on the other side of the dispute. You inevitably need to hear and see all that your adversary believes is relevant. Start by asking for the other side’s position (not just legal rhetoric and lawyer letters). If you can get free discovery do so. It is not a sign of weakness—it is effective lawyering.

7. Understand the weaknesses in your client’s position. All cases have warts—effective lawyers learn to measure their impact and confront them head on, not run and fold. Do not rely solely on what you are told. As best you can eliminate the chance that you are being misled by your client (sometimes intentionally and other times inadvertently). If the damning email is out there—find it.

8. Be on the look-out for admissions against interest. One of the most effective tools in the adversarial arsenal is the use of an opponent’s admission. I once tried a case involving a termination of a manufacturing supply contract. I represented the manufacturer. When cross examining an executive for the buyer, I got him to say “I guess you’re right.”  We obtained a jury verdict for $1.8 million.

9. Understand the personalities of all of the witnesses in the matter. Whether you are in a trial or just negotiating, appreciate that people are different, they communicate in different ways, and they are motivated by differing concerns. Spend the time to honestly and carefully consider who is speaking and what they are really trying to say. 

10. Keep it simple. Say what you mean and mean what you say.



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