Work collegially and understand that you should speak to more experienced lawyers to help you decide tough issues. But if you want to succeed as a lawyer you have to be ready to decide.
My colleagues and I at our firm every Monday morning (far earlier than most lawyers) start our week with a brief meeting where we each discuss what we learned in the last week. Recently, that involved a discussion on carefulness, and someone noted how “attention to detail” is one of the most often cited necessary qualities of a good lawyer. And while it is such a necessary quality, it is not only not sufficient for a lawyer to be careful, there are two qualities far more important, and far more necessary, that anyone wishing to be a great lawyer must possess.
The first, I hope obviously, is integrity. In my view, to be a truly great lawyer, you must strive to have a truly great character. It is a welcome lifetime endeavor, and something I only touch on here.
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The second, I also hope almost as obviously, is good judgment. But like integrity, I think this quality is often not highly valued. What exactly constitutes good judgment, or what some call prudential judgment, is the subject of many essays much longer than this one, as well as many books, including ancient books of scripture. I won’t pretend to say anything meaningful about such a vast subject save to focus on one very practical, and very important part of this essential quality of a good lawyer: the willingness and strength to make a decision.
This part of good judgment appears frightfully rare, at least amongst the lawyers who practice the complex litigation that my colleagues and I do. There is perhaps an obvious reason for this: it seems that in so-called big firms, who handle much of this complex litigation, they staff their matters with about 47 people. Or at least it seems that way. There’s always a point in one of our matters, during a very busy time, where while we might only have three or maybe four professionals assigned to a matter to which we know our adversaries have eight or nine regular staffers assigned including some associate from a different time zone who sends us a document or letter draft. We didn’t even know that person existed, let alone was assigned to the case. How many others are out there? We don’t know, but we do joke.
The point is that many law firms assigned a lot of people on their matters. While there is, I suppose, some value to crowdsourcing ideas, it seems that the downside of groupthink might cost more than any benefit obtained by having 46 people to bounce your idea off of. And big firms are not the only law offices that commit this sin: as a former government lawyer, I saw plenty of government lawyers with enormous independence and who gladly, even proudly, used their discretion to decide how their cases moved forward. But I also saw the worst kind of bureaucracy, where seven bosses had to sign off on some kind of decision, generally out of fear (of course). In this case, the fear was of what seemed to me to be a lot of very unlikely consequences and, even more, very unimportant consequences of our cases.
The point is that common litigation practice in different parts of the bar can discourage decisiveness. Even a partner of 25 years assigned to a matter likely has someone else more senior than her on the case who can make a decision. Even an experienced prosecutor may have a boss who wants to sign off on major pleas. If that’s the case, you simply don’t get enough practice making decisions. And if you don’t practice something you will never get any good at it.
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Lawyers need to find opportunities to make choices and to make judgment calls. Even first-year lawyers (under proper supervision) can do this, and we certainly do this at our firm. If a young lawyer did the research, perhaps such lawyer will not draft the important brief, or decide which way the important argument shall be made. But such lawyer can at the least advise a more senior colleague that she thinks the law is thus, and provide authority (and advocacy) for that position, rather than simply saying, in essence, “Well, here’s the law, and it seems to go this way and that, so please now make a decision since I’m afraid to do so.”
And that is the point: fear. If you decide, you might be wrong. Your choice might have a negative consequence. It could actually make a difference in the case. And if you’re a litigator, that means, in a lot of cases, it could actually make a difference in someone’s life.
That’s exactly damned right. But that’s why you’re a lawyer (or, at least, that’s why you should be): not just to do the research, not just to write one draft arguing go to the left as well as the one arguing to go to right, and not just to be careful, and not just to pay attention to detail.
You’re a lawyer to make decisions regarding people’s lives. Get practice at it and do that, or you’ll never be a great lawyer.
John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at [email protected].