To Litigate or Not to Litigate…that is the question

Some students are lucky because they have an experience prior to law school which helped them decide the area of law they want to pursue after graduation. In my case, I attended a week-long personal injury trial in which my uncle represented the plaintiff and knew I wanted to be a civil trial attorney even before my undergraduate years. Most students, however, have no such experience and no idea about the field of law they want to practice when starting law school. These students may have heard of litigation but don’t know if they are either interested or have what it takes to make a successful litigator.

As noted in previous blog posts, I practiced for many years as a partner in small to mid-size civil litigation firms in Chicago and represented physicians, hospitals, manufacturers, construction companies, employers and various other entities as defendants in lawsuits filed on behalf of injured plaintiffs. During this time, I opposed some of the finest litigators in the country, much less the Chicago area. Interest aside, most of these small and mid-sized firm litigators had certain characteristics in common which made them as effective and successful as they were. Some of these characteristics include the following:

  1. Extraverted

The short dictionary definition of “extraverted” is “outgoing and socially confident”. Needless to say, litigators must speak in a variety of forums including trials, depositions, motions, appellate arguments, mediations, arbitrations and others. Although there were a few exceptions, most of the great litigators I encountered were extraverted by nature since their jobs relied on the ability to engage people-Not that introverts can’t be successful in litigation because I did oppose some who gave the impression of being more thoughtful and academic than their outgoing or extraverted counterparts. Overall, since the nature of litigation work requires constant exposure to people, those who are extraverted will find it much easier to continually engage or interact with people as a litigator than someone who has a more shy, introverted personality.

  1. Enjoy Public speaking

It’s one thing to be “outgoing and socially confident” when speaking with family, friends, or a single interviewer but it is quite another thing to actually enjoy public speaking or talking in front of a crowd of strangers. As noted above, a litigator, by nature, will be required to speak to a jury with a courtroom full of people, at an appellate argument with a panel of judges, or perhaps lecture to a large group of fellow attorneys or clients during the course of their careers. As a result, a student who not only enjoys but thrives upon speaking before a group of strangers will be far more comfortable as a litigator than those who would prefer to interact one-on-one or with a much smaller group.

  1. Competitive

Make no mistake about it, litigation is fundamentally a competition between a plaintiff and defendant. When a claim is made or a lawsuit is filed, one attorney is trying to recover as much money as possible for his client (plaintiff) while the other attorney is seeking to pay relatively little or no money, depending upon the overall value of the claim or case. If a case proceeds to trial, the ultimate competition is the courtroom where one attorney is competing directly against the other attorney by persuading a jury to render a verdict in his client’s favor and against the other party.

Obviously, there are all types of competition inherent in life which do not involve participating in litigation. Taking a test in school involves competition against the other students in the class to see who gets the highest grades, getting a summer job involves competition against the other candidates in order to determine the person who attracts an offer, etc. Contrary to those examples, the life of a litigator not only involves inherent competition but head-to-head competition on a regular basis whenever dealing with their adversary such as during depositions, court hearing, trials, arbitrations, and mediations. And the most successful litigators I opposed during my career were not those who shied away from a battle or competition but actually loved engaging in “the fight”.

Let me emphasize that the best litigators realize they’re simply doing their job in representing a client during the course of a lawsuit and have nothing personal against the opposing attorney. In fact, I became friends on many occasions with attorneys I opposed who fought tooth and nail to advocate for their client when necessary but were always respectful and civil while the case was pending. If you don’t long for this head-to-head respectful competition which is constantly involved during many phases of a lawsuit, a career as a litigator may not be for you.

  1. Think quickly on their feet

It is well known that the unexpected often occurs during a deposition, court hearing, trial, and even during conversations with clients. Rather than take an extended break in order to regroup and address the unexpected (which would be rather awkward during a deposition, hearing, trial, or client conversation), the best litigators have the ability to think quickly on their feet and address the unexpected, often turning it to their advantage. I’ve seen this done during the evidence deposition of a plaintiff’s treating physician when one of the defense attorneys quickly turned an unfavorable opinion into a criticism of the injured plaintiff for failing to seek proper medical treatment. Things can happen quickly in the world of litigation so a litigator must have the ability to think quickly on their feet, know how to diffuse something unfavorable, and even turn the unfavorable into their advantage.

That being said, being thoroughly and properly prepared with all the facts and evidence of a case prior to a deposition, court hearing, trial, or conversation with a client enhances the ability to think quickly and regroup if the unexpected occurs. Unfortunately, I’ve seen experienced attorneys attend a deposition, court hearing, and trial with detailed typewritten outlines who were unable to deviate from the script and properly pivot when the unexpected occurred. Obviously, it’s good to have some notes before a deposition, court hearing, or trial but the best litigators use them only as a reminder while conducting the deposition, arguing a motion, or trying a case so they can keep an open mind and think quickly, if necessary.

  1. Poker-faced confidence

As noted above, it is not unusual for the unexpected to occur during a lawsuit which can put an attorney in an unfavorable position during a deposition, hearing, or trial. The best litigators are able to mask or disguise any hint of disappointment or frustration over an unexpected setback and keep a confident, calm demeanor as they proceed. I like to think of it as a poker face, meaning that you cannot tell from the look on their face that something unfavorable has occurred.

Judges, juries, opposing attorneys, and even clients can pick up visual cues from an attorney’s body language, voice, gestures, and demeanor during the course of an argument or interaction which suggest that their case has weakened and is not as strong as anticipated.  The best litigators were those who gave absolutely no hint of a change in their body language, voice, gestures, and demeanor when the unexpected occurred and continued to be supremely confident in their case, notwithstanding any perceived setback.

  1. Ability to relate to people

Last, but certainly not least, the most successful litigators are those  who are able to relate to people or have an ability to easily and comfortably connect with people. You can believe you’re extraverted and enjoy speaking to strangers but litigation and lawsuits involve the ability to persuade which is necessary to be successful. Whether it’s persuading your client, a judge, a jury, or the opposing attorney during settlement negotiations, the best litigators have an ability to connect with or reach people by reading their faces, their body language, the tone of their voice, and other human characteristics. People in service industries like a waitress or bartender must have an ability to relate to people or they won’t survive in their jobs.

Everyone may think they are inherently able to relate to people because they are merely required to interact with people on a regular basis. To prove that not everyone can relate to people, I’m sure you’ve known some individuals who seem to know the right thing to say at the right time and others who say the wrong things on occasion to anger, inflame, or turn people off. Frankly, it’s hard to teach someone how to read all the cues and properly relate to people if they don’t know how since it involves a complicated evaluation of all the factors cited above. If you feel that you have an innate ability to relate to or connect with all types of people, tall or short, rich or poor, diverse or not diverse, those are the types you may be facing in a jury during a lawsuit and a career as a litigator may be for you.

   onclusion

For the many years I practiced, I always loved the world of civil litigation. Even before a lawsuit or claim was filed, you had the opportunity to play detective and conduct a detailed investigation of an accident or injury which included a visit to the accident scene, interviews with relevant witnesses, review of relevant documents, research into applicable case law, and an evaluation based upon potential theories of liability available to a plaintiff’s attorney. Once a lawsuit was filed, the chess match began with anticipating and countering various moves by my adversary as the litigation process advanced. If you think you have the qualities cited above, you should consider a career as a mid-sized or small firm litigator so you can have the same type of experience I enjoyed for years and years.

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