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\u201cWhat is the best way to win a lawsuit?\u201d The question, I suppose, has as many answers as there are lawyers. The wiser litigators, humbled by experience and the wiser for it, will rightly tell you that there is no one successful approach to litigating a case, and that each litigator must cultivate his own style and methods, making the most of his natural strengths and the best of his besetting weaknesses.<\/p>\n
For all that, there are certain essential principles that every trial lawyer must observe. Above all, a trial lawyer must possess or develop a solid command if not a mastery of the laws that govern the dispute at hand. There really is no substitute. So far as possible, he must also gain an exact understanding of the underlying facts that gave rise to the dispute. Here too there are no shortcuts or permissible exceptions.\u00a0<\/p>\n
To perform this necessary work, a trial lawyer must personally read the controlling law (the cases and principal statutes) and also examine and organize the evidence with a critical eye.\u00a0<\/p>\n
As he proceeds, a good litigator\u00a0<\/span>must<\/em>\u00a0<\/span>apply the controlling law to the available evidence, rather than try, in vain, to contort or disregard evidence so that it can be manipulated to prove some legal theory or other. There is no more futile, thankless effort, than to swim against a sea of evidence and give offense to the judge and jury who resent your efforts to impose on them.<\/p>\n Proceeding in this manner, a good litigator will develop and refine his\u00a0<\/span>theory of the case<\/em>, stating what happened according to the evidence and in the manner most likely to appeal to a disinterested listener\u2019s sense of fairness, and so that the governing laws can be applied to these facts in the manner most helpful to his client.<\/p>\n Sometimes this approach merely means making the best of a dismal set of facts or placing them in their best possible light. Sometimes it means telling a compelling narrative that will eventually move a jury to render sweeping verdicts in his client\u2019s favor.<\/p>\n Here I describe the underlying strategy, which should be first attempted at an early stage of the litigation, then improved and developed as the litigation proceeds.<\/p>\n In addition to this strategy, the good litigator must have an excellent understanding of civil procedures and the law of evidence, which he will use to gather the evidence he needs to prove that his own characterization of the case is the best explanation, the most plausible explanation, the most likely truth. He will thus gather evidence, organize it, and present it adroitly, while using procedures and evidence to discredit or exclude his adversary\u2019s evidence. In addition a good litigator must be thick-skinned, extremely hard-working, well-organized, and supported by a capable staff. Lastly, he must have a sense of justice and never give the appearance of arguing in favor of an oppressive or unfair position. Do all these things well, and you will have become a masterful litigator.<\/p>\n Below I explain the approach that has worked best for my team and me.<\/p>\n To litigate well, it is necessary first to grasp the first principles of the legal profession: Ask first, what is a lawyer? What he is supposed to do? The answer is not so difficult for us practitioners to provide: a lawyer is one who is trained in the legal principles and procedures of his jurisdiction or perhaps those of more than one jurisdiction, and who uses his training to advise his clients about their transactions<\/em> and represent them in legal proceedings. <\/em><\/p>\n To state the matter more exactly, a lawyer is one who uses his education and training in the law to perform the following tasks for his clients:<\/p>\n So-called \u201ctransactional attorneys\u201d are supposed to specialize in the first two kinds of work (consultations and performing transactions), while so-called \u201clitigators\u201d or \u201ctrial attorneys\u201d are supposed to specialize in the third kind of work (representing clients in disputes that are mediated, litigated or arbitrated). Even so, a good transactional attorney must have a thorough understanding of how a lawsuit proceeds, so that each of his transactions usefully protects the client as much as possible from the hazards of the different kinds of litigation that might one day arise from the transaction. In the same vein, a good litigator must have a thorough understanding of the substantive laws that govern the underlying controversy, or else he is operating in the dark, relying solely on his tactical skill or mastery of evidence or perhaps his photogenic charm, but without a fundamental understanding of what the law has to say about the subject at hand.<\/p>\n From this I conclude that in the first instance a good litigator will be able to say at the outset of the case, \u201chere is what the law says about this kind of controversy, here are the arguments we can make in support of our position, here are the arguments we can expect our adversary to make, and here are the different possible outcomes\u201d.<\/p>\n This in turn presupposes that the litigator correctly recognizes what sort of controversy he has been asked to litigate. He must grasp the essentials of the case at the outset, when it matters it most. The client in nine cases of out ten does not know, nor should be expected to know how to state his own controversy, but perhaps understands only that his dealings with the adversary have gone horribly askew, and that the adversary was dishonest or oppressive during this course of a dealing in a way that has since proved ruinous. The lawyer must therefore listen very attentively to the client and patiently take note of everything the client has to say about his own circumstances.<\/p>\n Using his understanding of both the law and the facts at hand, the litigator must strive to recognize how best to summarize or characterize the client\u2019s situation, so that the existing laws (or some variation on them) can be applied as usefully and favorably as possible to the situation that he has thus re-characterized. This is the essential work of a litigator \u2013 the initial conception of how to articulate and argue the case. Do this work poorly, and all your ensuing efforts, no matter how exhaustive and strenuous, will be misguided and off the mark. Do this work skillfully, and you will have charted a successful strategy, which now awaits only your diligence and tenacity in the implementation.<\/p>\n So now we have two related tasks that in my estimation determine how well a litigator can handle any given case: Having a thorough understanding of the laws that govern the kind of dispute at hand, and striving to characterize the dispute in the most helpful possible manner, so that the applicable laws can be applied to the dispute thus characterized in such a way as seems most likely to lead to the best possible result for the client under the circumstances. This is not easy work, especially if the opposing lawyer is doing precisely the same thing, but in the opposite direction.<\/p>\n But even if a litigator performs this initial work with unmatched talent, he will not succeed unless he is (1) proficient in civil procedures and the law of evidence, (2) thick-skinned and able to thrive amid controversy, and (3) perseverant.<\/p>\n You cannot state your case well if you do not have an excellent grasp of the civil procedures that are followed in the forum where the case is being litigated. Some attorneys perhaps place too much stock in the mastery of these details, which makes them masters of tactics, but all too often at the expense of having a successful underlying strategy. Nevertheless, a good litigator must have a very firm grasp of the procedures, and he should always review them at each stage of the case, if only to brush up and confirm his own exact understanding of them.<\/p>\n As for evidence, it is the \u201cbricks and mortar\u201d of a case: If you don\u2019t have any, you have no case to build. The strategy is the telling of the client\u2019s story and the application of the law to this story, thus told. But this story, or version of events, must be proven by evidence, or else you are merely bellowing in the wind, or recounting a tissue of lies that your cagey opponent will expose as a sham. You must have evidence to support your case, or you have no case at all.<\/p>\n From this it follows that you must know how to use civil procedures to obtain evidence, and then you must have an excellent system in order to organize and present the evidence, and lastly of course you must know the laws of evidence so that you can have yours admitted and your adversary\u2019s discredited or even perhaps excluded.<\/p>\n These then are the essential tactics of successful litigation: The gathering, organization, presentation, admission, refutation, impeachment and exclusion of evidence. I think it usually takes a good litigator at least a decade of active practice to become reasonably proficient at these skills.<\/p>\n Without these basic skills of litigation, all the rest is so much wasted effort. This said, I repeat that you will almost never win your case merely by an astute manipulation of evidence and procedures. Some lawyers seem to think otherwise. To me they are tacticians who lack a winning strategy. But no litigation strategy, no matter how brilliant, has any prospect of success unless you can skillfully use procedures to gather evidence that you can then present in a convincing manner at trial.<\/p>\n So now I have boiled it down to an underlying strategy and necessary tactics. A sound litigation strategy<\/em> requires (1) an excellent understanding of the substantive law that governs the kind of matter your client presents to you; and (2) a helpful, accurate summarization of the case as well as a sound application of the governing law to the case so that its probable outcome will be as favorable as possible to the client. Litigation tactics<\/em> principally refer to the skillful use of civil procedures and rules of evidence in order to conduct discovery, obtain and organize evidence, use it to prove your points, and impeach or exclude your adversary\u2019s evidence when appropriate.<\/p>\n There are other attributes that are likewise indispensable to a successful trial lawyer: you must be thick-skinned and able to withstand the derision and insults of your adversary, as well as the indifference or apparent disapproval of an unimpressed judge. If insulting comments or gestures affect you too much, you should not become a litigator, as your whole life you will find yourself insulted, openly and subtly, by your adversaries. Some will mean it in earnest after genuinely concluding that you are a pitiful, hapless lawyer, or perhaps only a green novice whom they can outfox at every turn. At least from them you can learn something, as each of us can always draw some benefit from any criticism, even if it serves only to a shed a little light on the one making the criticism. Others still will deride you because in truth they are alarmed by your apparent skill and ability, or by the strength of your case, and some will try to put you down and discourage you before you succeed at your task, which they fear you have begun in an excellent way. Others still, at the end of the case, will become angry with you over the successful results you have gotten for your client. You have to be able to shrug it off in a moment and rise above the fray, or else you will be angry or intimidated and likely an unhappy camper your entire working life. A good litigator will take the long view and the high road for living well, never nursing a grudge and never holding a resentment. Fight as hard as you can for as long as you must to win for your client, but never let the poison of rancor sully your countenance or becloud your judgment.<\/p>\n In addition to all the rest, you must<\/em> be perseverant. The law is not a place for the idle. If you do not work very hard on your cases, and if you are not a very diligent, tireless sort of person who takes initiatives, you are employed in the wrong line of work. For the indolent lawyer, it is only a matter of time before he is embarrassed and his client harmed by his more assiduous, harder-working adversaries. Litigation is best done by those who are natural beavers, laboring away as a matter of course because that it is how work in the world gets done.<\/p>\n There are two further considerations that deserve special mention \u2014 the importance of good organization and the justice of your cause. I explain these points below.<\/p>\n Each successful litigation is always a well-organized effort<\/em>. You must have your dates properly calendared and meet all of your deadlines (preferably well within time). \u201cLast-minute\u201d guerilla warfare might seem colorful, but is often disastrous in the practice. A good lawyer will know what tasks he must do and by when, and he must be certain to meet his deadlines by starting each task well in advance of its deadline. For every appearance and each appointment, the litigator must arrive prepared, with all his necessary papers or information within easy reach, and with all necessary people in attendance or available at a moment\u2019s notice. This in turn requires the skillful use of task lists, deadline lists, a litigation calendar \u2013 a system of organization in short. Computer programs have made this work much easier. Even so, there is no substitute for an excellent assistant or team of assistants, who help the litigator to organize the effort. Behind every successful litigator you will find a competent support staff.<\/p>\n Last, and most important of all, a litigator must be a champion of just causes<\/em>. Even if your client has apparently committed a legal wrong, you might become a champion of due process <\/em>and fair procedures<\/em> or perhaps an advocate who argues against an unfair rush to condemn <\/em>or overzealous punishment that is an excessive, oppressive reaction to the wrong committed.<\/em><\/p>\n In antitrust cases, which I often litigate, the just cause is often to explain why a dominant company\u2019s business practices have undermined competition, allowing that company to overcharge and under-serve customers while harming competitors\u2019 businesses in ways that stifle innovation and render customers its mere captives. If left unchecked, such companies tend become so large in size, so few in number, and so dominant in their respective markets, that they inevitably acquire great social and political advantages. When such companies dominate our markets, they tend to undermine not only these markets and our economy, but also our political institutions and larger society. More generally, we want businesses to succeed by offering better products and services or lower prices, not by using dirty tricks whose real purpose is to prevent other businesses from competing against them. When a company uses such tactics to prevent marketwide competition, it should be condemned as an antitrust violator. At the same time we do not want windfall opportunists to litigate spurious, contrived antitrust claims against excellent companies that have succeeded the time-honored way \u2014 by offering great goods or services at the lowest possible prices. That are the kinds of \u201cjust causes\u201d that I personally relish presenting, but in every case there is a just cause if you look for it and present it fairly. Always try to show why for the sake of fairness you client must win. You should never openly adopt an oppressive position. Every one in the room will look for some way to derail your merciless scheme, even if the letter of the law favors you on all fours. Plead justice, plead fairness, and show that both require that your client obtain relief. This should be part of your characterization of the case and indeed the foundation on which the rest of your case is built.<\/p>\n Sometimes it is hard to explain why fairness and equity favor your client\u2019s cause. Try putting yourself in your client\u2019s shoes, or, as the old saying would have it, \u201ctry to walk a mile in his shoes\u201d before attempting to state his case. This necessary work will allow you to state difficult cases with eloquence and conviction, and, when you represent a defendant, it will also tell you when you should seek to settle a case that you cannot have dismissed before trial. In some cases it is only too easy to explain why fairness and equity require a judgment for your client, if only you will make the effort to connect the simple dots. Lawyers must have sufficient detachment to assess and litigate their cases skillfully, but detachment does not mean \u201cvoid of all meaningful human emotion.\u201d A lawyer must be the champion of his client\u2019s cause, and this means that at times he must convincingly explain how his client has suffered because of the adversary\u2019s villainy. A trial lawyer is not a dry bureaucrat, but much more like a movie director of a documentary, which he presents live to a group of people who above all wish to do the right thing now that they have been dragged into the proceeding and forced to sit in a box to listen to the dispute for days on end. First our director gives an opening statement \u2014 i.e., an overview of what he plans to show by testimony, documents, video clips and demonstrations. Then he presents this evidence. Then he gives his summation \u2014 i.e., he explains what it all means in light of the controlling law that the judge explains to the jury. All the while his adversary is doing the same thing, and each seeks when possible to discredit the other\u2019s points. It has been my view that a lawyer cannot do this work well unless he has empathy, common decency, and a profound sense of justice, even if he must always remain professional and not allow his indignation to interfere with good judgment.<\/p>\n Article by William Markham<\/a>, San Diego Attorney. \u00a9 2006.<\/p>\n [\/et_pb_text][\/et_pb_column][\/et_pb_row][\/et_pb_section]<\/p>\n","protected":false},"excerpt":{"rendered":" \u201cHow to Litigate a Lawsuit\u201d\u00a0(By William Markham, \u00a9 2006)Introduction \u201cWhat is the best way to win a lawsuit?\u201d The question, I suppose, has as many answers as there are lawyers. The wiser litigators, humbled by experience and the wiser for it, will rightly tell you that there is no one successful approach to litigating a […]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":48,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_et_pb_use_builder":"on","_et_pb_old_content":"The First Principles<\/h2>\n
\n
Developing the Underlying Strategy<\/h2>\n
Civil Procedures and Evidence<\/h2>\n
Restatement of the Essentials<\/h2>\n
A Thick Skin Is Best<\/h2>\n
Toil and Sweat, if not Blood<\/h2>\n
The Importance of Organization<\/h2>\n
The Justice of Your Cause<\/h2>\n
<\/em>If the role of the litigator is to represent his client in a legal dispute, he must remember that the laws exist to try to promote and further the ends of justice and equity. The governing law of any given topic is usually the imperfect, cumulative effort of legislators and judges to figure out the most sensible, fair way to dispose of the controversies and contested issues that have come before them. Statutes and case decisions are the means by which they do this work, and the judge in each case will be influenced by the circumstances and posture of the litigants as well as by the arguments made by their advocates.<\/p>\nThe First Principles<\/h3>\r\nTo litigate well, it is necessary first to grasp the first principles of the legal profession: Ask first, what is a lawyer? What he is supposed to do? The answer is not so difficult for us practitioners to provide: a lawyer is one who is trained in the legal principles and procedures of his jurisdiction or perhaps those of more than one jurisdiction, and who uses his training to advise his clients about their transactions and represent them in legal proceedings, or, to state the matter more exactly, who uses his training to perform the following tasks for his clients:\r\n
\r\n \t
Developing the Underlying Strategy<\/h3>\r\nUsing his understanding of both the law and the facts at hand, the litigator must strive to recognize how best to summarize or characterize the client\u2019s situation, so that the existing laws (or some variation on them) can be applied as usefully and favorably as possible to the situation that he has thus re-characterized. This is the essential work of a litigator \u2013 the initial conception of how to articulate and argue the case. Do this work poorly, and all your ensuing efforts, no matter how exhaustive and strenuous, will be misguided and off the mark. Do this work skillfully, and you will have charted a successful strategy, which now awaits only your diligence and tenacity in the implementation.\r\n\r\nSo now we have two related tasks that in my estimation determine how well a litigator can handle any given case: Having a thorough understanding of the laws that govern the kind of dispute at hand, and striving to characterize the dispute in the most helpful possible manner, so that the applicable laws can be applied to the dispute thus characterized in such a way as seems most likely to lead to the best possible result for the client under the circumstances. This is not easy work, especially if the opposing lawyer is doing precisely the same thing, but in the opposite direction.\r\n\r\nBut even if a litigator performs this initial work with unmatched talent, he will not succeed unless he is (1) proficient in civil procedures and the law of evidence, (2) thick-skinned and able to thrive amid controversy, and (3) perseverant.\r\n
Civil Procedures and Evidence<\/h3>\r\nYou cannot state your case well if you do not have an excellent grasp of the civil procedures that are followed in the forum where the case is being litigated. Some attorneys perhaps place too much stock in the mastery of these details, which makes them masters of tactics, but all too often at the expense of having a successful underlying strategy. Nevertheless, a good litigator must have a very firm grasp of the procedures, and he should always review them at each stage of the case, if only to brush up and confirm his own exact understanding of them.\r\n\r\nAs for evidence, it is the \u201cbricks and mortar\u201d of a case: If you don\u2019t have any, you have no case to build. The strategy is the telling of the client\u2019s story and the application of the law to this story, thus told. But this story, or version of events, must be proven by evidence, or else you are merely bellowing in the wind, or recounting a tissue of lies that your cagey opponent will expose as a sham. You must have evidence to support your case, or you have no case at all.\r\n\r\nFrom this it follows that you must know how to use civil procedures to obtain evidence, and then you must have an excellent system in order to organize and present the evidence, and lastly of course you must know the laws of evidence so that you can have yours admitted and your adversary\u2019s discredited or even perhaps excluded.\r\n\r\nThese then are the essential tactics of successful litigation: The gathering, organization, presentation, admission, refutation, impeachment and exclusion of evidence. I think it usually takes a good litigator at least a decade of active practice to become reasonably proficient at these skills.\r\n\r\nWithout these basic skills of litigation, all the rest is so much wasted effort. This said, I repeat that you will almost never win your case merely by an astute manipulation of evidence and procedures. Some lawyers seem to think otherwise. To me they are tacticians who lack a winning strategy. But no litigation strategy, no matter how brilliant, has any prospect of success unless you can skillfully use procedures to gather evidence that you can then present in a convincing manner at trial.\r\n
Restatement of the Essentials<\/h3>\r\nSo now I have boiled it down to an underlying strategy and necessary tactics. A sound litigation strategy<\/em> requires (1) an excellent understanding of the substantive law that governs the kind of matter your client presents to you; and (2) a helpful, accurate summarization of the case as well as a sound application of the governing law to the case so that its probable outcome will be as favorable as possible to the client. Litigation tactics<\/em> principally refer to the skillful use of civil procedures and rules of evidence in order to conduct discovery, obtain and organize evidence, use it to prove your points, and impeach or exclude your adversary\u2019s evidence when appropriate.\r\n
A Thick Skin Is Best<\/h3>\r\nThere are other attributes that are likewise indispensable to a successful trial lawyer: you must be thick-skinned and able to withstand the derision and insults of your adversary, as well as the indifference or apparent disapproval of an unimpressed judge. If insulting comments or gestures affect you too much, you should not become a litigator, as your whole life you will find yourself insulted, openly and subtly, by your adversaries. Some will mean it in earnest after genuinely concluding that you are a pitiful, hapless lawyer, or perhaps only a green novice whom they can outfox at every turn. At least from them you can learn something, as each of us can always draw some benefit from any criticism, even if it serves only to a shed a little light on the one making the criticism. Others still will deride you because in truth they are alarmed by your apparent skill and ability, or by the strength of your case, and some will try to put you down and discourage you before you succeed at your task, which they fear you have begun in an excellent way. Others still, at the end of the case, will become angry with you over the successful results you have gotten for your client. You have to be able to shrug it off in a moment and rise above the fray, or else you will be angry or intimidated and likely an unhappy camper your entire working life. A good litigator will take the long view and the high road for living well, never nursing a grudge and never holding a resentment. Fight as hard as you can for as long as you must to win for your client, but never let the poison of rancor sully your countenance or becloud your judgment.\r\n
Toil and Sweat, if not Blood<\/h3>\r\nIn addition to all the rest, you must<\/em> be perseverant. The law is not a place for the idle. If you do not work very hard on your cases, and if you are not a very diligent, tireless sort of person who takes initiatives, you are employed in the wrong line of work. For the indolent lawyer, it is only a matter of time before he is embarrassed and his client harmed by his more assiduous, harder-working adversaries. Litigation is best done by those who are natural beavers, laboring away as a matter of course because that it is how work in the world gets done.\r\n\r\nThere are two further considerations that deserve special mention -- the importance of good organization and the justice of your cause. I explain these points below.\r\n
The Importance of Organization<\/h3>\r\nEach successful litigation is always a well-organized effort<\/em>. You must have your dates properly calendared and meet all of your deadlines (preferably well within time). \u201cLast-minute\u201d guerilla warfare might seem colorful, but\u00a0 is often disastrous in the practice. A good lawyer will know what tasks he must do and by when, and he must be certain to meet his deadlines by starting each task well in advance of its deadline. For every appearance and each appointment, the litigator must arrive prepared, with all his necessary papers or information within easy reach, and with all necessary people in attendance or available at a moment\u2019s notice. This in turn requires the skillful use of task lists, deadline lists, a litigation calendar \u2013 a system of organization in short. Computer programs have made this work much easier. Even so, there is no substitute for an excellent assistant or team of assistants, who help the litigator to organize the effort. Behind every successful litigator you will find a competent support staff.\r\n
The Justice of Your Cause<\/h3>\r\nLast, and most important of all, a litigator must be a champion of just causes<\/em>. Even if your client has apparently committed a legal wrong, you might become a champion of due process <\/em>and fair procedures<\/em> or perhaps an advocate who argues against an unfair rush to condemn <\/em>or overzealous punishment that is an excessive, oppressive reaction to the wrong committed.\r\n\r\n<\/em>In antitrust cases, which I often litigate, the just cause is often to explain why a dominant company's business practices have undermined competition, allowing that company to overcharge and under-serve customers while harming competitors' businesses in ways that stifle innovation and render customers its mere captives. If left unchecked, such companies tend become so large in size, so few in number, and so dominant in their respective markets,\u00a0 that they inevitably acquire great social and political advantages. When such companies dominate our markets, they tend to undermine not only these markets and our economy, but also our political institutions and larger society. More generally, we want businesses to succeed by offering better products and services or lower prices, not by using dirty tricks whose real purpose is to prevent other businesses from competing against them. When a company uses such tactics to prevent marketwide competition, it should be condemned as an antitrust violator.\u00a0 At the same time we do not want windfall opportunists to litigate spurious, contrived antitrust claims against excellent companies that have succeeded the time-honored way -- by offering great goods or services at the lowest possible prices. That are the kinds of \"just causes\" that I personally relish presenting, but in every case there is a just cause if you look for it and present it fairly.\r\n\r\n<\/em>If the role of the litigator is to represent his client in a legal dispute, he must remember that the laws exist to try to promote and further the ends of justice and equity. The governing law of any given topic is usually the imperfect, cumulative effort of legislators and judges to figure out the most sensible, fair way to dispose of the controversies and contested issues that have come before them. Statutes and case decisions are the means by which they do this work, and the judge in each case will be influenced by the circumstances and posture of the litigants as well as by the arguments made by their advocates.\r\n\r\nAlways try to show why for the sake of fairness you client must win. You should never openly adopt an oppressive position. Every one in the room will look for some way to derail your merciless scheme, even if the letter of the law favors you on all fours. Plead justice, plead fairness, and show that both require that your client obtain relief. This should be part of your characterization of the case and indeed the foundation on which the rest of your case is built.\r\n\r\nSometimes it is hard to explain why fairness and equity favor your client\u2019s cause. \u00a0Try putting yourself in your client\u2019s shoes, or, as the old saying would have it, \u201ctry to walk a mile in his shoes\u201d before attempting to state his case. This necessary work will allow you to state difficult cases with eloquence and conviction, and, when you represent a defendant, it will also tell you when you should seek to settle a case that you cannot have dismissed before trial. In some cases it is only too easy to explain why fairness and equity require a judgment for your client, if only you will make the effort to connect the simple dots. Lawyers must have sufficient detachment to assess and litigate their cases skillfully, but detachment does not mean \u201cvoid of all meaningful human emotion.\u201d A lawyer must be the champion of his client\u2019s cause, and this means that at times he must convincingly explain how his client has suffered because of the adversary\u2019s villainy. A trial lawyer is not a dry bureaucrat, but much more like a movie director of a documentary, which he presents live to a group of people who above all wish to do the right thing now that they have been dragged into the proceeding and forced to sit in a box to listen to the dispute for days on end. First our director gives an opening statement \u2014 i.e., an overview of what he plans to show by testimony, documents, video clips and demonstrations. Then he presents this evidence. Then he gives his summation \u2014 i.e., he explains what it all means in light of the controlling law that the judge explains to the jury. All the while his adversary is doing the same thing, and each seeks when possible to discredit the other\u2019s points. It has been my view that a lawyer cannot do this work well unless he has empathy, common decency, and a profound sense of justice, even if he must always remain professional and not allow his indignation to interfere with good judgment.\r\n\r\nArticle by William Markham<\/a>, San Diego Attorney. \u00a9 2006.\r\n