ROBERT E. SHAPIRO
The author, an associate editor of LITIGATION, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago.
Litigation is a curious business, isn’t it?—a strange combination
of past, present, and future. The immediate focus is on something that already happened. It will be adjudicated by current
legal standards. But it depends decisively on predicting and
controlling the future. A litigator must look ahead, and foretell
and manage the ups and downs, the ins and outs, of the dispute—from the very first day the matter arises to the day when,
one way or another, it is resolved, with a stake through its heart.
The habits necessary for navigating the yesterdays and todays
of litigation are learned early on. Every young litigator coming
out of law school should already know the law, or at least how
to find it. So too, she should become comfortable very soon with
managing the day-to-day docket of court deadlines and routine
hearings. It takes a little longer perhaps to learn how to build a
sound factual record. But this kind of sleuthing can be fun and
has now become far easier, if perhaps more tedious, given how
email provides a nearly verbatim account of what took place. So,
before long, most young litigators will have the necessary tasks
of the first two elements of litigation well in hand.
This is not to say there are no real skills to master here.
Courtrooms, not to mention docket clerks, follow their own
special etiquette. You learn fairly soon that there is every rea-
son to treat court personnel and court reporters with special
courtesy, given how useful it can be to have them as allies. As
for record building, you must forget the received wisdom of the
rest of the world. A good record builder knows hindsight is never
20/20 but rather equal parts poor remembrance, prejudice, and
wishful thinking. And when it comes to your client, you must
trust but verify. In two or three years’ time, though, most young
lawyers are aware of the booby traps and adequate to the task
of building a fair summary of the critical facts.
It is the final piece of the puzzle—managing the future—that
is wanting most of the time. It is not enough to know the law
and the factual record. A good lawyer needs to know what to
do with these bits of understanding as the case moves forward.
This kind of special foresight we call good judgment, and it is
always in demand.
A lawyer without good judgment, no matter how well he can
build a record or knows the law, is of no more use than a racecar
with a tipsy driver, whereas those who have it in abundance can
sometimes turn a jalopy into a winner. But what is good judgment exactly? And where does one get it? Both questions are
important, but neither can be answered simply.
In fact, they present a troublesome problem. False images
of good judgment abound, and many young lawyers have the
suspicion, even the worry, that they will never get it, no matter how hard they try. In the most basic terms, good judgment
seems to be, or to be about, making good strategic decisions