Excelling in the legal field doesn’t necessarily mean excelling in the courtroom. Plenty of careers have been made at the negotiating table, in mediation, and even in contracts. For those who want to excel at trial, the path forward is often hard to define, especially since success and excellence are two very different things in this profession. If you’re looking to present yourself as a truly great litigator in your areas of practice, there are not many resources dedicated to spelling out the path. Luckily, Mark W. Bennett, a federal judge, has set out the traits he feels lead to a truly great approach to litigation. Navigating them is not as simple as reading his theory of great trial litigation, but it does start there.
Much of Judge Bennett’s theory comes down to the idea of storytelling as both art and persuasive rhetoric. As he details in his article, it can be difficult to find truly effective oral storytellers. At the same time, opening and closing statements are all about the ability of the attorneys involved to deliver a meaningful and persuasive narrative of the case that ties together the witness testimony and evidence presented. That’s not all, though. The order of witnesses and review of concrete pieces of evidence also constitute a narrative, and becoming an incisive cross-examiner involves understanding both your narrative presentation to the courtroom audience and the ways your opposition attempts to create a counter-narrative. That’s core to the practice of dismantling their narrative in favor of your own.
Reasonableness as a Negotiating Tool
The other side of Judge Bennett’s argument is that lawyers need to be able to bridge these storytelling abilities with an unerring sense of reasonableness and good listening skills. This makes sense because clashing narratives might make for compelling drama, but they don’t lead to resolution. That involves being able to hear when and how your narratives interact, as well as being able to see when the best outcome for your client favors closure over a long process. Cultivation of this trait is also very important for those who want to jump from litigation to the bench as so many have done. Successful judges like Mike Tawil who transition from practice to positions overseeing cases in their own courtrooms do so because they demonstrate to their colleagues, clients, and the general public that they have mastered the art of being reasonable as they weigh the individual factors in a case. This is done through:
- Excellent listening and active listening skills, including a high degree of oral retention
- Careful parsing of the evidence and its strengths and weaknesses
- Unsurpassed judgment in the art of negotiationwhen closing settlements and plea arrangements
These are not easy abilities to master. For some, they are the project of a whole career. They are, however, vital to the success of anyone who wants to rise to a position of prominence as an attorney or to make the transition from litigator to judge. Not only do they lead to better courtroom performances when practicing law, but they also set you up to better weigh things when you are supposed to remain neutral and provide jury guidance.