Choosing Civil Litigation Counsel
Choosing counsel can be the most important decision you make throughout an entire court process. Your counsel is your primary means of communication to the opposing party and lawyer as well as the court, and sometimes others such as the media. Choosing the right litigator to represent you is the first step to intelligent litigating.
What Your Lawyer Needs to Know
There are a number of kinds of knowledge that are necessary for effective advocacy. The one most commonly first on your mind when you have a legal problem is the substantive area of the law involved. If you have a commercial law problem, you want a lawyer with experience in that area; if you have a personal injury problem you want a lawyer with experience in that area. However, the substantive law is only one factor that goes into the result in any given case. Depending upon the circumstances, it can be more or less important. In any circumstance, intelligent litigating requires knowledge and skill in three additional important areas; procedure, evidence, and persuasion.
Procedure is about how your dispute is brought before the court or administrative tribunal. In any given situation, getting to a hearing is likely to be preceded by a process of exchange of information and documentation in one form or another. A hearing can be based upon written testimony and documentation, or upon oral testimony, or a combination of both. Often success or failure can depend upon the information your lawyer is able to acquire from the other side or third parties, or upon the way in which the dispute is framed for purposes of presentation to the court. The steps involved from the commencement of a proceeding to its conclusion define what the dispute is and determine what factual information will be available for presentation to the court. Often those steps are accompanied by disputes along the way, which also have to be determined by the court. Procedure is the set of rules that governs the steps along the way. It is the area of expertise of litigators who practice before courts and administrative tribunals. If you can't get your dispute through this process in an effective way, how well your lawyer knows the substantive law can be a moot point. So you want to know about your lawyer's procedural knowledge and experience in the forum you will be litigating in.
Evidence is the law about what the court or tribunal can properly listen to and look at, once you get there. The general intention behind rules of evidence is to ensure that the court or tribunal is presented with fair testimony and documents that are relevant and meaningful to the dispute, and not with testimony and documentation which might appear important but actually be misleading or unfair and thereby lead to the wrong result. How well the rules of evidence work in any given case can depend a lot on the skill of the lawyers involved. Good evidence can be excluded from a hearing if not presented properly, and bad evidence can make it in if not opposed properly. Evidence, like procedure, is the area of expertise of litigators who practice before courts and administrative tribunals. Again, if you can't get the evidence you need before the court or tribunal, your lawyer's knowledge of the substantive law may not help.
Persuasion, or advocacy, is the art of persuading a given decision maker that the right decision is the one that is most favourable to you. It is more art than science, and in the litigation context, it is about how effectively the lawyer can communicate the arguments, factually and legally, in favour of the lawyer's client, both to a court or tribunal and to opposing counsel. Effective persuasion requires the ability not only to speak eloquently and logically, but also to help clients and witnesses to do so when they are testifying and to expose the fallacies or errors of opposing parties and witnesses through effective cross-examination. It often requires the ability to take stock of a volume of complex material and to organize and present it in a logical, coherent, and effective way. Again, this expertise is that of the litigator, and again, if your case cannot be presented persuasively, your lawyer's knowledge of the substantive law may not help.
Lloyd's view: When you are looking for counsel and thinking about what you want your lawyer to know, by all means ask about the substantive area of the law. But don't stop there. Ask about the lawyer's experience before courts and tribunals so that you have an idea of how well prepared the lawyer is to get your case to the court, with the right evidence and to present it in an effective way. In many cases the lawyer's pure litigation skills - the ability to be effective with procedure, evidence, and persuasion -will be much more important than experience with a specific area of the law, which can usually be learned on a case-by-case basis when litigation requires it. Choosing well who will be your counsel is the first step to intelligent litigating.