Litigation is often dreaded by many in law school and the profession but there are a few ways to not only be a successful litigation attorney but an exception and happy one too. It all involves knowing how to prepare for the demanding responsibilities of a litigator and the many moving parts that go along with it.
How do you know when to make the right legal argument?
One of the most important parts of being a litigator is knowing when to advance—or not advance—a certain legal argument in a pleading and subsequent motions or memoranda. Some litigators believe that throwing the kitchen sink and making sure the most sticks is the best way to go about it—it’s not. Seldom do these tactics work and even more rarely does it make a judge, your dear friend, like you or your client. The rule of thumb should always be to consider your facts and the elements for each cause of action you want to advance. If you can reasonably advance those facts as satisfying the elements for each cause of action, remembering that a jury has to do the same, then it is a cause of action worth advancing. But if you do not think that the elements can be met, worry not, opposing counsel will be sure to remind you of it if you do advance such actions. So, err on the side of caution and if you cannot prove the elements—leave it out of the complaint or counter/crossclaims.
When to fight back on disputes during litigation?
Often times opposing counsel will provide the opportunity to cause a call to arms and to heighten the blood pressure and cause the thought of immediate retaliation, however, that is not always the best course of action. Not every motion requires a response, and not every response requires a reply. An exceptional litigator will know when to stand firm on a motion that speaks for itself without the need to constantly respond to opposing counsel’s arguments—if those arguments amount to nothing more than strawmen. A good rule of thumb is to weave through motions and responses from opposing counsel for real arguments that attack the crux of your case and that could actually lead a court agree with the argument and ignore those arguments that attack semantics and immaterial matters in the case. A good opponent will hide the needle in the pile of hay, find the needle before it pricks you and ignore the rest of the hay. Besides, you do not want to further emphasize irrelevant arguments that opposing counsel raised to the court in your responses or replies. Let the poor arguments die and focus on the arguments that will win you your case.
Why is research important to being a great litigator?
From the days of law school to practice, research is emphasized, correctly so. A good litigator knows how to research well—or hires good law clerks who can. The reason for this is because all it takes to turn a hearing around or to nail the coffin shut on a motion for summary judgment or dismiss is case law that speaks exactly to your argument and to your facts. Being prepared and having the right ammunition, case law, to support you is just as important for a litigator as is knowing how to present legal arguments with confidence and elegance both in the briefs and in oral arguments. A motion is only as powerful as the case law in support of the arguments, without constitutional, statutory, or case law support for a position no court will agree with you, no matter how persuasive you may seem or come across.
Being a good litigator is not hard, it just requires patience, preparation, good research skills, and the ability to keep calm during tough situations and find a way out of it without losing your temperament and causing damage to your case, i.e., client, and your reputation—in that order. The rest: the public speaking, the motion practice, and the negotiation skills all will come with time and practice, but the rest has to come from the individual and from hard work and dedication.
If you need advice on Business Law Issues, do not hesitate to contact one of our experienced business attorneys at EPGD Business Law, EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.
*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*