The Importance of Credibility and Persuasiveness

Author:Mr Michael Feldberg
Profession:Schulte Roth & Zabel LLP
 
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Getting Into Litigation From my point of view, the real reason to be a lawyer is that-as corny as it might sound- every now and then you have an opportunity to help somebody. Given my own interests and talents, the best way that I can help somebody is by presenting a case in a courtroom. It's really the only part of the law that I've ever really wanted to do, which is to try cases, to litigate controversies, and to try to be the best courtroom advocate that I possibly can. For me, the thing that is the greatest challenge for any courtroom lawyer is defending a criminal case with a client who is arguably truly not guilty, where the potential downside is someone who might actually be innocent being convicted of a crime. The most exciting part of this job is getting a problem from a client that is a difficult problem, and it may seem to be an insoluble problem, and coming up with ways to solve it. This means getting a solution to the problem that is a better solution than a reasonable person thinks is possible. The result is usually not all that the client wants, because clients sometimes want things that are not completely reasonable; clients are not necessarily the most rational judges of what is a realistic outcome. I therefore try to look objectively at a problem, at what would be the standard result-what would you expect to happen with the resolution of this problem, what would be better than that, what would be worse than that-and hope that you end up better than that-and, often, substantially better than that. Getting up to Speed To be good at this job, you have to be an incredibly quick study, because every case that you get is going to be different; every case that you get is going to involve a different industry, or a different business, or a different fact pattern, and each of those situations is going to be complicated. The key to this is being able to digest an enormous volume of material very quickly. I think everybody does it differently; what works for me is trying to focus on the particular problem, separating it from what I know from other things, and just giving it as much of my focused attention as I can. In a more metaphysical sense, the first part is all learning-what are the facts in this case; how can I learn them; where do I get them; who else might know something; what's the relevant body of law; what does it say; how are we going to apply that here? Once you know the facts, you know the law, and you've thought about how to apply the two together, then the question is, who do I persuade, and how do I persuade them? In the ideal situation you will be able to get the facts of the case. Some of those facts will come from the client. Many of them will come from other sources, whether they're written material, other witnesses, and so on. Ideally, you want to learn everything there is to know about the case, you want to understand the law, and then you want to persuade your adversary, or the judge or jury, that your side is right. The Most Important Areas Obviously, a very important part of litigation is persuasiveness; however, I think the single most important thing in virtually all aspects of litigation is judgment. Within the issue of judgment, most litigations involve incredibly complicated fact patterns-thousands of discrete...

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