The Practice Corner: Good Enough Is not Enough for Good Attorneys

by Daniel DeWoskin
Trial Attorney
www.atlantatrial.com

One of the main truths in being an attorney is that you are constantly learning, constantly bettering your knowledge, and constantly improving upon the qualities that you have that make you good at the work you do. As attorneys, we read new developments in the law, we maintain our integrity and base of knowledge by attending continuing education seminars, and we work to never be content that we know all we need to know about any given case or body of law.

Rule 1.1 of the Bar Rules with respect to Ethics and Professionalism states:

“A lawyer shall provide competent representation to a client. Competent representation as used in this Rule means that a lawyer shall not handle a matter which the lawyer knows or should know to be beyond the lawyer’s level of competence without associating another lawyer who the original lawyer reasonably believes to be competent to handle the matter in question. Competence requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

One of the ways in which I am always looking to improve my work personally is by watching and listening to other lawyers, not just in my own local community, but across the country. Thankfully, I am involved with networks of some truly magnificent lawyers. I have access to thousands of other knowledgeable attorneys on several different list-serves. These lawyers have differing ranges of expertise and ability and differing perspectives that allow for me to analyze and reanalyze my approach to a given situation or case.

I can still think back to when I was in law school. I would often walk across town from the law school to the county courthouse and watch trials in progress. I would see some of the best attorneys I have ever seen in action, trying cases, arguing motions, and showing what it was to be a trial attorney. On many occasions, I would see some of the best of the best. On other occasions, I would see what I would immediately recognize to be some of the worst of the worst.

In those days, when I watched an inarticulate cross-examination in a criminal case, or perhaps listened to a closing in a civil case where I could not make heads or tails of what the attorney was trying to say to the jury, I would struggle to figure out where things went wrong. Perhaps it was just poor preparation. I thought about whether or not the witnesses changed direction midtrial or whether something else went wrong. As I began trying my own cases, it became much clearer that proper preparation throughout the case could alleviate most of the problematic things I observed. After all, I saw many attorneys thrown complete curveballs who would think quickly and sometimes turn the situation around.

Regardless of whether or not the attorneys I observed were competent, there was simply never a moment where I did not learn. To be honest, in my early days, seeing the truly awful and unprepared lawyers was quite encouraging. After all, I knew so very little, but could rest easy in the fact that I could do a better job than that guy. This was not the model I aspired to, to be better than the worst, but it made me confident that everyone was not an MVP. There is as much to learn about what not to do as there is to learn about what to do.

Having said that, I always found it more exhilarating to watch the remarkable attorneys. These were the lawyers who gave a damn. They were not merely filling the seats next to their clients, but cared about what they do. These people are easily recognizable. These attorneys are not just easily identified by me, but also by juries, judges, their colleagues, their clients, and the public at large. A great deal of what makes a great lawyer is knowledge and preparation, but enough cannot be said about a lawyer whose heart is in his or her work. It shows; how could it not?

As I became more experienced in my own practice and more involved in bar associations or other professional groups, these astute lawyers were the ones who made the effort to attend meetings regularly. They would speak often at CLEs, were strangely more responsive when I or someone else reached out for professional advice or assistance, and were always curious to debate or discuss a particular case or issue of law. And as I practiced more and more, I found that I had less in common with those others who were content to do the same work over and over again, making excuses when they lost or blaming a judge for an unfavorable ruling. Of course, I would still see these individuals and talk about the law with them, but the conversation was always rather vacant and meaningless.

Today, I am far more experienced than I was in those early days, but I strive to wake up each day eager to be among the most knowledgeable persons in the courtroom with respect to my case and the law. Thankfully, my own insecurities rarely allow for me to feel like I am anything but the least knowledgeable person in the room. This means that I am perpetually reading, listening, and learning. Every day still feels like my first day in that regard.

Long ago, I abandoned the notion that once I have been practicing for twenty or thirty years that I would be really comfortable in what I know. This is just not the person I am. My fears are of a real value to me as a lawyer. They keep me from underestimating my opposition. They keep me from taking my clients or my practice for granted. They keep me engaged in the practice of law.

In the end, it is less about Bar Rule 1.1. Competence, as the term is used in this rule, can suggest that there is a point at which an attorney has acquired the knowledge and capability necessary for a given matter. For the true advocate, competence is not a goal that is achieved, a trophy to be hung on the wall. “Knowledge, skill, thoroughness and preparation,” as those terms are used in the rule, place a continuous and healthy duty upon an attorney. It is not a burden any more than it is a burden for professional baseball players to drill, practice, and dissect the play of their opponents. Although it can be frustrating, that nagging feeling like I never quite know enough is exactly what keeps me focused on learning more.