Three traits of highly effective litigators (and other tips for finding the right one for you)
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From corporate law to tax, intellectual property and securities law, litigators work in a wide variety of practice areas – and there are a variety of ways in which clients can choose a good litigator. These include referrals, searching a law society’s directory of lawyers (which will include any disciplinary history and the lawyer’s licence status), and court records.
Traits to look for when hiring a litigator include a successful track record in previous cases (though they don’t need to have won them all) and a strong knowledge of the rules of evidence.
But there are other, less tangible characteristics that are also important, says Lawrence Ritchie, a litigation partner in Osler, Hoskin & Harcourt LLP in Toronto.
“A good litigator needs to empathize with their client’s situation,” he says. “They have to see things from their client’s point of view, and to understand not just the legal implications of the problems that they have, but also their overall non-legal needs and how they intersect.”
Second, he says, “a good litigator also has to have the capacity to understand the other side of the story; being a fierce advocate, but still understanding why the other side feels so intensely about the correctness of their position.”
Finally, a good litigator must be a good communicator and able to distill complicated feelings, emotions and situations “into a very understandable bite-size narrative, so that a judge or jury can understand it and can relate to it.”
Approach to litigation
There is no one-size-fits-all for the type of litigator best suited to a particular case, Ritchie says.
“Some litigators are ferocious combatants, and certain cases require a tough stand; other cases require a softer and more empathetic touch to allow the court to understand the equities of the situation,” he notes.
“When someone’s looking for a litigator they should understand the type of dispute it is and ultimately the message and the signal they want to convey to the judge or the jury: either a bulldog type of type of approach, or someone who can … be helpful to the trier of fact, to be able to allow the judge or the jury to come to that ‘right decision.’”
Experience and fees
Contrary to what many may believe, “the number of years of experience is not the most important factor,” writes Toronto lawyer Pulat Yunusov in his post “How to choose a commercial litigation lawyer.” A lawyer fresh out of law school can be appropriate for small claims files or as a second-in-command on a larger file, he writes, while a lawyer with 50 years of experience can be disastrous.
Generally, “a lawyer with five or more years of litigation experience should be able to handle most disputes” for a professional practice or a small business (e.g., with annual sales under $10 million) quite well. And because lawyers tend to increase their fees with their seniority, “if you are choosing between a lawyer with 15 years of experience and five years of experience, the difference in quality could be zero but the difference in fees could be two- or threefold.” At the same time, Yunusov warns, beware of litigators who are “dirt cheap” and who could drop your case after underquoting on it.
“Leading lawyers are civil to their opposing counsel,” writes McCarthy Tetrault LLP litigation partner Atrisha Lewis in her Canadian Lawyer article “Top 10 habits of a leading litigator.”
“Leading litigators opt to take opposing counsel on contentious matters for coffee rather than succumb to the temptation of writing a nasty reply email,” she writes. “Leading litigators often mentioned that some of their most exciting cases came from conflict referrals from a former opposing counsel.”
Work ethic and dedication
“Leading lawyers do not just join a group, they jump in and contribute,” Lewis continues. “They leave an impression by working hard and being engaged in the professional activities in which they participate.” Leading litigators also develop their confidence and skills “by working up all of their cases. They invest time understanding the facts and the law. Leading litigators are not overwhelmed by cost-benefit analysis; they focus on doing a good job for their clients every time.”
The five Cs
Litigation lawyer Howard Scher defines the five key traits of a litigator as credibility, civility, confidence in litigation, curiosity, and a competitive spirit.
“Effective litigation lawyers know that every move they make can potentially build or destroy their credibility, so they protect it at all costs.” They possess “an insatiable curiosity beyond law for a variety of topics [that lead] to innovative approaches and solutions,” and “a warrior’s spirit. … They consider beating their opponents as secondary to the pursuit of finding an elegant trial solution. … But like a warrior, they are respectfully persuasive, without being overbearing.”