The Difference That Makes The Difference

Any list of the qualities that go into making a great trial judge would have to include the ability, after having assumed the position, to stop acting like a trial lawyer without forgetting what it was like to be one.  Even so (and even great judges) get frustrated with, by, and at lawyers on occasion.  In a courthouse full of lawyers, you can’t swing a negligently injured or wrongfully dead cat without hitting one.  Some of lawyers should be grateful that there’s hardly ever a negligently injured or wrongfully dead cat around when the judge needs one.  Because the system works best when everyone does their best, judges expect lawyers to always do their very best for their clients.  Sometimes they don’t.  Sometimes they do, but their best is not very good at all. 

All lawyers are endowed by their creator with certain unalienable abilities.  The clearest example among these is “intelligence.”  In order to be a lawyer, you have to be at least book smart enough to get in and get out law school.  But not all law school graduates are created equal.  The intelligence gap between the smartest lawyer I have ever known and the smartleast lawyer I have ever known is huge.  I have known lawyers with legitimate genius level IQs.  I have also known lawyers who I doubt could spell “IQ” if you spotted them the “I.”  The fact that most lawyers, like most people (and most judges), fall somewhere in-between, is neither surprising nor particularly important.  Being smart is good.  Being smart is necessary.  But being a “smart” isn’t the same as being “great.” Some lawyers have more “natural ability” or “talent” than others.  Life is like that.  Some people who have been gifted with lovely singing voices and perfect pitch, some people have not, and some people only think they have. Similarly, some people are naturally gifted with the traits that make for great lawyering.  Those gifts, although not easily quantified, are easily recognized.  It’s whatever the lawyer equivalent of “graceful” is.  Talent is good.  It’s better to have it than to not have it, but it’s hardly ever enough. 

If you have two lawyers blessed with the same level of intelligence and talent, the difference that makes all the difference is practice, practice and more practice.  What all of the best lawyers have in common is not that they are smarter and/or more talented than everybody else, it’s how hard they worked to get that good.  They work more.  They work harder.  They put in all of the intense, grinding, borderline obsessive effort necessary to make themselves great.  There are no shortcuts.  It isn’t magic, it’s math:

(Intelligence + Talent) x Hard Work = Skill Level

So, the good news for lawyers who aren’t the smartest or most talented is that they don’t have to be to be really good at what you do.  The bad news for them is that if they’re not good at what they do, then it’s their fault.  The worse news is that the Dunning-Kruger effect (a/k/a the “stupid people don’t know they're stupid” study) may be in effect and they might be a terrible lawyer who thinks they’re a great lawyer – arguably the worst kind of lawyer there is.  The worst news, and a source for the aforementioned judicial frustration, is that it can be difficult if not impossible for litigants to tell the difference.  The frustrating news is that judges can.

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SIDEBAR

It has been said that good lawyers deserve good judges, but bad lawyers require them.  I know that it has been said because I’m the one who said it. Lawyers come and go through the courtroom, so they don’t see the lawyers that came and went before them.  They don’t see what the judges who are in that courtroom all day long see, so they don’t know what judges know.  Judges know that half of the lawyers who hold themselves out to be “trial lawyers” are not good at what they do – some are so bad they shouldn’t be allowed to do it anymore.  Twenty-five percent are “competent,” fifteen percent are “good,” and ten percent are “great.”  I know that sounds harsh, but it doesn’t mean it isn’t true.  It’s also true for dog walkers, magicians, roofers, and everybody who works at any Waffle House in any city in the America.  The difference is that there is no professional or ethical obligation to pack enough poop-bags, pick the right card, or not undercook your grits.  Lawyers have both a professional and ethical responsibility not to suck at their job - and if they do, to work hard until they don’t. Judges have a professional and ethical responsibility to hold them accountable if they don’t.