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We all know that the practice of law has changed dramatically in the past 25 years. Perhaps the biggest change, and indeed the most formidable challenge, for lawyers of my generation and older is the increasing call for specialization. In-house counsel often seek lawyers who have a specialized subject matter knowledge rather than the know-how of a trial lawyer. In this quest for specialists, however, it’s easy to lose sight of one still very important fact: Litigation is itself a specialized skill which can bring significant economic benefits to clients. As I have noted often, a true trial lawyer can learn the facts and the law much cheaper and easier than a specialist can learn to litigate, despite his or her knowledge of a particular industry or type of law.
The best litigators identify issues, create arguments in support of one side of that issue and “sell” those arguments to the adverse party, jury, court, arbitrator or mediator. This is no small feat, which is why advocacy, both oral and written, has long been considered an art form. The ability to stand up in a courtroom or in an arbitration hearing (or even seated during a conference call) and present your case to opposing counsel, or the judge, or jury and persuade these decision makers to agree with your position requires skill that comes from experience and practice. If you define yourself as a trial lawyer, that’s also the most fun part of the job.
Yet, despite their tremendous importance, litigation skills have become undervalued. Most clients, especially those involved in business disputes, simply have no desire to ever see the inside of a courtroom. That is not only understandable, it is just common sense. The growth of mediation, both as a business and a settlement tool, can be directly linked to the one argument used by every mediator plying that craft: There is risk in putting the decision in the hands of a judge or jury who does not understand your case or your arguments as well as you do. But to avoid litigators because you want to stay out of a courtroom makes as much sense as avoiding a doctor because you don’t want to get sick.
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