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"Expert" Lawyers

Reprinted with permission from the American Bar Association, The Journal of the Section of Litigation.

Can a lawyer ever be an expert? Today, the answer would seem to be not only "can" but "must." No self-respecting lawyer these days would dare to describe herself as a "mere" counselor or general practitioner. It's certainly no way to attract clients, or gain distinction among one's peers, or even make conversation at cocktail parties. No, no, it's no good to be just a good lawyer anymore. You have to say what kind of (good) lawyer you are and claim to know all that your specialty would require you to know. Every contemporary lawyer has an area of the law in which she has a presumed expertise. Lawyers are experts, surely. No doubt about that.

But experts in what exactly? Well, the possibilities would seem now to be endless. You could be a banking law expert or an intellectual property maven. You might claim special knowledge of bankruptcy law or tax advice or commercial litigation. Imagine the mirth, not to say disdain, inspired by a lawyer who says he specializes in "clients" or claims to solve their "problems." Seriously? The immediate assumption is that the speaker is a charlatan, or a rube, someone who doesn't get it or just takes what he can find, a bottom feeder, a generalist, and a failure, soon to have nothing to do at all.

Young lawyers have gotten the message. They now know to make their career choices early. By their first "callback," if not sooner, they must be prepared to specify their leanings, at the very least. Chosen specialties, however ill-informed, are far better. And, from the time they enter a law firm, they are definitively slotted, hastened into a near-permanent choice. No longer is it just a choice between litigation and transactional work. The former is subdivided into appeals and trial court work, which is then further subdivided into such concentrations as personal injury or securities (plaintiff or defendant?), class actions, domestic relations, or some other expertise. Corporate work now has mergers and acquisitions, contracts, real estate, banking, and so forth. The categories keep proliferating, as this mitosis of specializations continues apace, everyone hunting for that niche of irreducible knowledge that makes him or her the "go to" guy or gal when that species or sub-species or sub-subspecies of problem materializes.

Reinforcing this trend, most clients now look for and demand such individualized expertise. Large companies have their stable of specialists, usually including an intellectual property (IP) litigator, a tax lawyer, mergers and acquisitions experts, a creditor's rights lawyer, and, if a retail company, tort lawyers for their slip-and-fall cases. To meet this demand, older generalists have needed to reinvent themselves, retrofitting their practices to conform to one type of expertise or another. Usually, they make their choices more on the basis of their experience than their tastes, trying to leverage the former into a continuing stream of more experiences, greater expertise, more fame (or notoriety), and, of course, a greater book of business. In the commercial litigation world, this works well until the matter seems headed for trial, which it almost never is, but which may cause the client to seek out a trial lawyer instead of a litigator, because the trial lawyer is presumed, unlike the litigator, to be an expert in get¬ting the jury to see it the client's way.

Querulous older lawyers rue the narrowing of understanding and perspective this specialization has occasioned. Their principal complaint is that lawyers who do only one type of law sometimes fail to spot issues related to another field and cannot handle them nimbly even if they do. There does seem to be something impoverished, confining even, about lawyering with such a limited view. But there is an even more fundamental problem. Again, what exactly are these lawyers expert in? Once more, one's first reaction is that it's a silly question. The antitrust lawyer knows the antitrust laws, the IP lawyer knows all about trademarks and copyrights, and the tort lawyer knows about every aspect of strict liability and duties to warn. What's so hard about that?

Perhaps more than may at first appear. Consider for a moment a professor of securities law. She knows the law backward and forward, inside and out, and can recite provisions of the '33 and '34 Acts, wax rhetorical about regulations, and give chapter and verse on recent private rulings. And she can teach these things to young lawyers. Clearly, she's an expert. But, absent a convincing track record of practical success, would she be the first choice to handle a securities class action or a public offering? She's an expert in securities law, but clearly she is not the expert wanted. Why not?

Well, of course, knowing securities or IP law does not win you cases or get your deal done. Indeed, contrary to the opin¬ion of the law school faculties, knowing securities or IP law does not make you much of a lawyer in the practical sense at all. This is not to say that if a trademark lawsuit is filed, it is not important to know how the trademark laws work or that a trademark law professor would not need to be consulted. Who would not reach for McCarthy on Trademarks to find out what Professor McCarthy might have to say? But all the study of the law in the world will not guarantee, or even provide a good chance of, success in the case. Something more is needed. What?

Good Judgment

Experience? Again, it seems insufficient. Long experience may help build the expertise seemingly desired, but it is not the expertise itself. Indeed, long experience in cases in a particular area of the law cannot ensure a good result. Even both elements together fall short. We all know good lawyers and bad ones, and what distinguishes them is neither technical knowledge of the law nor longevity in the practice, or even both together. It is something else, a vaguer, more elusive thing that we are looking for, something we might call good judgment.

Good judgment is a peculiar thing, not at all like "expertise." Unlike knowledge of the law, it is not a matter of rules, not something that can be taught, like an art or a trade. It is something more like a "feel" or "sense" or "intuition." It is difficult to be an expert in something as undefined, not to say ephemeral, as all that. And unlike experience, it is never assured of appearing at all, no matter how long one practices. Nor can it be easily tested or proved to exist. It arrives at no certain time and can disappear in the twinkle of an eye.

What makes judgment so different, and perplexing, is that it is neither about the present, as in the current state of the law, nor about the past, as in past cases. It is about the future. It is all about prediction. The best lawyers are able to make good decisions about what to do now because they have a good sense of what will happen later, which they forecast both accurately and dynamically. In litigation, the goal is to say how others—opposing counsel, the judge, or a jury—will act, including how they will re-act once certain steps are taken. It is like a chess game, but more difficult, because success or failure depends on the opinions of several others, opinions that the lawyer is of course trying to shape as well as predict.

Corporate law is similar. Negotiating and documenting a deal requires similar kinds of prediction. The best lawyers therefore use form documents advisedly. It is all about thinking about what, in this particular case, might happen and tailoring the documentation so that it covers all future possibilities, known and unknown. The law professor's knowledge here is not useless. It pays to know what circumstances the law allows. But it is no substitute for good, clear thinking about what might still happen beyond the ordinary or the previously known.

To say it again, good lawyers need to know something about the future. But their knowledge about this is necessarily imperfect. They cannot be omniscient, like the gods, and to claim as much seems a defect in and of itself. Indeed, to call oneself an "expert" amidst such mysteries is reminiscent of the problem presented by ancient diviners, soothsayers, and prophets. These claimed knowledge of the future, something no ordinary human could know. They relied for their knowledge on communications with the gods. But this was highly problematic, as it was unclear if they really had the means to know what the gods intended. More, there was always a matter of interpreting what was being said by the gods, or the prophets themselves, who were savvy enough to put their predictions in ambiguous terms. Most important, even if the gods had given the prophet reliable information and even if it were clearly stated, it was still possible the gods might change

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