This article appeared in the October 14, 2014 New York Law Journal Special Section, "First Year Associates Handbook."
In a recent exercise, attorneys were asked two very basic questions about their profession: (1) In one word, what is the most important attribute of those attorneys that you find to be exceptional, and (2) why?
It might be expected that attorneys would believe that qualities such as education, experience, or personality are qualities that are most important in making an attorney exceptional, but the results were more revealing.
Instead of responding with qualities that are largely out of an attorney's immediate control, such as intelligence or experience, the vast majority of attorneys that participated in the survey responded with basic qualities that are within every attorney's control. The three most cited attributes of exceptional attorneys were: preparedness, perseverance, and integrity.
The exercise reveals that excelling in the field of law is not something that necessarily needs to be innate to an attorney or something that has to be nurtured with years of education or experience. To the contrary, the survey reveals that all attorneys, from young, first-year associates to seasoned veterans of the profession, can immediately start to distinguish themselves within the profession by paying close attention to certain fundamental elements of lawyering.
The fact that such basic elements of practice were the most cited demonstrates just how many attorneys fail to meet this most basic bar. Whether it is overwork, complacency, or disinterest, the survey reveals that many attorneys today do not practice some of the most basic elements of the profession and those that do are often recognized by their peers as exceptional. What can be learned from this simple survey is not only the attributes that are most valued by attorneys, but also that any attorney can elevate the level of his own practice by adhering to some basic principles like honesty, hard work, and determination.
"By failing to prepare, you are preparing to fail."—Benjamin Franklin
One of the most cited qualities of exceptional attorneys was "preparedness." An attorney can be qualified, intelligent, and experienced, but if he is ill prepared, then he will invariably be at a significant disadvantage in any case. Rather than merely hoping for a good result, proper preparation puts an attorney in control of each situation and generally in control of his and his client's own destiny.
Mark Landman of Landman Corsi Ballaine & Ford in New York City said:
Preparation wins cases because you are comfortable that no matter what issue arises (whether at trial, appellate argument, mediation or in a meeting with a client), you will have the ability to respond to it effectively.
Eileen Farrell of Conway Goren & Brandman in Melville responded:
An attorney that comes to a court conference and more importantly a trial, fully prepared and has a thorough understanding of the facts and legal issues involved (both pros and cons) immediately sets the tone of the case and sends a message to the adversary that he/she is ready for anything that comes his/her way.
Paul S. Devine of Goldberg Segalla in Garden City wrote:
A lawyer is never effective unless he/she is prepared for the obvious and the expected. I am always impressed with lawyers who are prepared no matter their skill level. And I can say unequivocally that the prepared lawyer is almost always successful.
Any lawyer can take the time to prepare, but not every lawyer does. Sadly, it appears that all too often lawyers are largely unprepared; that fact, in particular, is what distinguishes the prepared attorney from his peers.
A prepared attorney is ready to handle both the expected and the unexpected that may arise in the context of the everyday practice of law. When meeting with a client, the well prepared attorney alleviates the anxieties and trepidations associated with unfamiliar legal matters. When dealing with an adversary, the prepared attorney can often send a clear message that his client is well represented. When dealing with the court, an attorney well versed in the facts and law of a case can be cognizant of a singular fact or issue that can ultimately prove persuasive.
Preparation should be a fundamental part of every lawyer's practice, but attorneys often feel that they are smart enough or experienced enough to "get by" or "wing it" without the need for thorough preparation. Those attorneys are all too often proven incorrect. At oral argument of a motion or appeal, an unprepared attorney will omit a key fact or law or case. At a deposition, an unprepared attorney will forget to ask an important question. At trial, an unprepared attorney will not have all necessary research and investigation to properly cross-examine a witness. Not only do these important omissions damage the attorney's position, but it is often transparent when an attorney is not well prepared. Hesitation in responsiveness, unsureness in a voice, and undue delay to search notes, are all a portent of an attorney's lack of preparedness. Any of these type of unavoidable "tells" leaves the judge, opposing counsel, and even the client with a sense not that the attorney is simply unprepared, but such appearances often give the impression that the position being argued by the attorney is, in fact, wrong. The facts and law may very well be on the side of the unprepared attorney, but between his inability to cite pertinent information and the appearance of error, he may very well lose the point, the case, the client.
Much to the contrary, the attorney that takes the time to properly prepare often commands authority and sets direction. Rather than simply hoping for the best and leaving the result to chance, preparation enables the attorney to be in control. Such control of the situation often enables an attorney to project confidence, which can help persuade others and win the point, hallmarks of an exceptional attorney.
"Integrity is the essence of everything successful."—Richard Buckminster Fuller
Another quality most cited as making attorneys exceptional was "integrity." Some respondents used similar words like "honesty" and "trustworthy." Integrity is paramount to the practice of law because once confidence in an attorney's honesty is lost, he can no longer effectively advocate on behalf of his client.
Donald L'Abbate, founding member of L'Abbate, Balkan, Colavita & Contini in Garden City, said that "the practice of law requires honorable practitioners and honorable practitioners possess uncompromising integrity . … After integrity, everything else is window dressing."
Michael Barasch of Barasch McGarry Salzman & Penson in New York City responded: "An attorney must have [integrity] in order to successfully negotiate a transaction, a settlement or convince a jury of his client's case."
The very nature of the legal profession requires lawyers to speak on behalf of their clients. As a result, it is imperative that the adversary, the court, and the client feel assured that they are dealing with someone in whom they can trust.
Given the number of attorneys in practice today, it might seem that attorneys almost practice anonymously; that whatever is done in the context of one legal matter will have no effect on what happens in another, but this is a fallacy. While there may be many lawyers, the number of lawyers in each practice area and in each geographical area remains limited and those attorneys that practice in the same area will find themselves repeatedly dealing with the same attorneys over the course of a career. Even today, with the impersonal relationships fostered by communication methods such as email, reputations—be they positive or negative—become known in the legal community.
It takes time for an attorney to develop a reputation as an honest, trustworthy attorney with strong integrity. Fellow attorneys must see this behavior on repeated occasions in order to be impressed in this way, but once earned, such a reputation lends credibility to an attorney's word, his cases, and his advocacy. To the contrary, it takes but one weak moment to ruin a reputation. An attorney who is found to be dishonest or unethical in the course of a representation may never recover the respect of his adversary, an adversary who will no doubt warn others.
There are times in the course of a career when an attorney is faced with difficult ethical decisions: Should he bend the truth, should he keep his word, should he engage in sharp practice? While there could be some temporary gain by taking such actions, the long term consequences of such actions are more significant. Such actions damage the attorney's reputation and his ability to advocate effectively on behalf of his clients.
Integrity is an intangible quality that goes beyond knowledge, education, experience, and proficiency. An attorney may have the skills required to be successful, but without integrity an attorney cannot truly rise to the level of exceptional.
"Great works are performed not by strength but by perseverance."—Samuel Johnson
Another quality that was cited by attorneys as the most important attribute of exceptional attorneys was "perseverance." Perseverance in the face of challenging obstacles can enable an attorney to achieve results for his client that others with less determination may not be able to attain. Similar words cited in the survey included, "tenacity," "determination," "passion," and "zeal."
Leo K. Barnes Jr. of Barnes & Barnes in Melville wrote:
No matter which side of the proverbial "v" an attorney is on, to me [perseverance is] one of the most compelling attributes for those who are successful in this profession. On any given case, one may encounter a challenging client, adversary, judge, facts, law, or the legal system generally. Counsel must remain objective, coupled with the proper outlook, in order to achieve despite obstacles and setbacks which are inherent in the practice of law.
Many of the cases that an attorney handles throughout his career may be routine cases that any competent attorney could handle and achieve satisfactory results for his client, but there will be cases from time to time that are out of the ordinary; cases that present hurdles or obstacles that are difficult to overcome. These obstacles may arise in the form of difficult facts, unfavorable law, an unlikable client, an ornery adversary, a challenging judge, or any number of other impediments that can face an attorney in the handling of every day legal matters. What often separates the exceptional attorney from the average attorney is the exceptional attorney's perseverance and determination in the face of these obstacles, which can enable him to achieve results for his clients that others would not.
It can be very easy for an attorney to accept defeat upon reaching an imposing impediment in the course of a representation and simply concede that the obstacle is too great to overcome. When this happens, an attorney loses the argument, loses the negotiation, loses the case, loses the client. Of course, not every point can be won and not every goal can be achieved, but all too often, attorneys concede the loss before it is necessary to do so. It is the persistent attorney, the determined attorney, the zealous attorney, that does not readily yield his position when the time is not yet ripe, who allows the position to be maintained with the chance yet remaining to prevail.
On a grand scale, we have seen the results that can be achieved by exceptional people with great perseverance. Rev. Dr. Martin Luther King Jr., Mahatma Gandhi, and Nelson Mandela each faced great obstacles and setbacks, but with absolute determination they persisted in the face of those obstacles and as a result they were able to change the world. These men helped achieve results in large measure because of their determination and perseverance; they did not retreat in the face of the hurdles before them. Most attorneys' cases may not change the world, but the analogy remains true. An attorney can achieve results for his client with perseverance and determination where others would have sooner shrunk from the challenge and accepted defeat.
Perseverance enables an attorney to win arguments that would otherwise have been lost, to be successful in negotiations that would otherwise have been unsuccessful, and to win cases that would otherwise have been lost. Achieving results for a client that other attorneys would not have achieved is often the product of an attorney's perseverance and achieving results that another attorney would not have achieved is undoubtedly the mark of an exceptional attorney.
What is the most important attribute of exceptional attorneys and why? Two simple questions were presented in this informal survey, but much is revealed about the legal profession in the most common answers. An attorney can be recognized as exceptional simply by adhering to a few basic principles, such as preparation, perseverance, and integrity; principles that should already be at the foundation of each attorney's practice.
William T. McCaffery is a partner at L'Abbate, Balkan, Colavita & Contini where he practices legal malpractice defense.