By Peter C. Richter, Miller Nash LLP
The threat of lawsuits is a constant concern for today’s businesses in our litigious society. When a business or individual becomes involved in a lawsuit, the single most important decision to be made is choice of lawyer.
Who that individual or business chooses as its lawyer will very likely be the difference between achieving a favorable outcome or a disaster.
But the spectrum of today’s legal styles can make selecting a lawyer a formidable task. Lawyer types range from the junkyard‑dog, Rambo‑style lawyer – whose techniques often hinder resolution of the client’s problem – to the litigator, who uses every available procedural tool – consuming thousands of hours – and recommends settling a case in order to avoid a jury trial that he or she lacks the skill or experience to win.
These extremes highlight the need to find and retain a true advocate.
It comes as a shock to most people that in almost all states, including Washington and Oregon, a lawyer needs no special education, training or experience to represent a client in a courtroom or before a panel of arbitrators. A lawyer needs only a law degree and a certificate of admission to the state bar, neither of which requires any specific training or skills in the art of advocacy and persuasion – skills that ancient scholars recognized as vital for anyone who purports to speak for another.
What is an advocate?
An advocate focuses on preparing a plan to resolve the client’s problem favorably, economically and efficiently, regardless of the forum. An advocate must be skilled in the art of negotiation, recognize when mediation or arbitration is appropriate and, if all else fails, possess the experience and fortitude needed to win in the courtroom.
Even if a case does not go to trial, hiring an advocate can help in negotiating a better compromise. (Many cases settle “on the courthouse steps,” so the odds of achieving a favorable settlement increase if your advocate has earned a reputation for mastery in the courtroom.)
It is the fear of losing at trial that forces your opponent to offer a reasonable settlement. Knowing this, an advocate begins every new matter by building a case to win at trial although chances are the case will never reach a jury.
An advocate knows how to build a winning case for trial because he or she has spent years acquiring and honing the timeless and universal tools and techniques of persuasion.
The art of persuasion
The basic principles of persuasion include gathering all the facts, preparing a detailed chronology and organizing key facts into a story that will guide the listeners toward the desired conclusion.
An advocate recognizes that people like to come to their own conclusions and not be told what to think or do. An advocate knows how to tailor the presentation to the particular audience, using clear, concise, everyday language instead of a barrage of legal terminology.
Given our modern society’s preference for graphics and sound bites, the advocate uses a range of skills and techniques from other sources – among them advertising, sales, theater and the media – to paint a picture that is not only clear and credible, but also memorable.
The ideal representation
The advocate is one who knows the law, knows your business and knows how to persuade others. Today, the legal principles involved in a case are relatively easily identified and a lawyer can be educated about any particular business or industry. Yet a true advocate’s powers of persuasion are mastered only after years of faithful study and experience.
To secure the best potential outcome for your dispute, choose a lawyer with the most experience and success in persuasion. Lawsuits are won by good facts, good witnesses, and, all else being equal, good advocates.
The outcome of your case will depend on your choice of an advocate who has the ability to lead listeners to a conclusion in your favor.
Steven E. Turner and Peter C. Richter are partners of regional law firm Miller Nash LLP. Turner is head of the firm’s Vancouver Litigation Team.
