Become a better lawyer: running a case, doing a deal, moving in-house and other tips from the top

It’s not a popularity contest. You go to meet the family of the person you’re dating — which, incidentally, I’m way too old for — and your goal is to be liked. You go to meet the client on whose behalf you’re conducting litigation and being liked just isn’t important. In fact, being buddy-buddy can be a bad thing. A lot of clients want to be able to say, “My lawyer’s a real bastard.” They’re looking for somebody who’s objective, tough, cynical and willing to go out and really fight their corner.

Of course, there has to be some diplomacy there as well. I aim for a temperate bluntness: get across the bad news without causing the client to have a heart attack.

Empathy is important, too. I regularly come across clients who’ve been treated unfairly. A number of people I represented in a very high profile white-collar criminal matter had been dealt with in a heavy-handed, coercive, even what I’d call an abusive manner by the prosecutors and the FBI. Sure, you’re a hard-nosed litigator, but there’s no harm in acknowledging to your client that you don’t approve of those kinds of tactics. Then do your job of standing up to the people using them.

Listen. One of the problems with lawyers — especially litigators — is that we like to talk. We get the most joy out of hearing ourselves, rather than listening to somebody else. That’s a serious downside. I have to fight that.

Try to understand what the client wants. It’s often not what he thinks he wants. The obvious example is when the client wants to sue. There may be alternatives that are more in his real interests (although admittedly not in counsel’s economic interests).

Persuasion yes, manipulation no. Never overstate the risks or understate the chances of success in order to “help” the client take what you think is the best course of action. It’s a temptation that I most frequently encounter when I’ve concluded that a settlement is very much the right thing to do. If you mislead, a new situation may present itself shortly afterwards in which you find yourself compelled to contradict your earlier statements. And suddenly you have a client who no longer trusts you.

Avoid pie in the sky discussions. Often there are three or four alternative damages scenarios. You might sit there and say, “If we use this theory and can support this fact and that fact, we could have a claim worth $180 million here.” Now that’s a chat you want to have internally with your team, not with the client. Sure, I’ve inflated expectations — when the client asks what the best possible outcome is, it’s hard not to. In those situations it’s a good idea to move the discussion on to a less exhilarating subject. Like costs.

Learn to speak the client’s language. While working in London, that has meant getting to grips with British English. The use of the word “scheme”, in particular, caused me some problems. It has a somewhat negative connotation in the US, so hearing it used to describe completely legitimate enterprises was a little confusing at first. Then there’s industry jargon. Back in the 1980s, I did quite a lot of work for the music arm of CBS. I’d buy Rolling Stone, Variety — anything to give me some exposure to the vocabulary they were using.

Don’t drag your feet dealing with the secondary issues. In meetings I’ve often seen lawyers use up huge amounts of time dealing with low priority matters, then, in an atmosphere of considerable anxiety, find themselves forced to cram all the important stuff into the last ten minutes. An hour is a big chunk out of the day of a CEO of a large corporation. So it’s worth giving some thought to how you’ll fit everything in beforehand.

Explain the processes. If the client doesn’t know what’s going on, they’ll overreact to things that aren’t important. In any litigation you’re going to win some battles and lose others that won’t significantly impact on the final result. Having a disclosure order made in your favour, for example, is good news but not exactly cause for jubilation. Likewise, there’s no need to panic if a decision on the scheduling of the examination of witnesses goes against you. The client should be in on all this.

I guess it’s all about learning to avoid the obvious flaws in your personality type. I’ve known lawyers with totally different styles who were equally brilliant at dealing with clients. What they had in common was a self-awareness that allowed them to temper their natural inclinations at the right moments.

John Beerbower is a partner at Cravath, Swaine & Moore

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