QUALITIES OF A GOOD TRIAL LAWYER

QUALITIES OF A GOOD TRIAL LAWYER

Definition-

A trial lawyer is an individual of the legal profession who assists his clients to adjudicate their matter before a court of law.

Despite our best efforts it was not possible to get a Black’s Law Dictionary definition. However, the Free Dictionary, whose credibility we are at pains to verify but which verification we are yet to acquire at the moment, offers a definition:

A trial lawyer is a lawyer who specializes in defending clients before a court of law.

It further defines a lawyer as:

“A professional person authorized to practice law; conduct lawsuits or gives legal advice. “

Black’s Law Dictionary defines a lawyer as:

 "A person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law”.

A trial lawyer can therefore be defined as:-

A person learned in the law who practices law and adjudicates their clients’ matters before a court of law.

Qualities

1.     Professionalism-

·       time management

o   A counsel should arrive before the scheduled time in order to save the Court’s time and also because this shows confidence and preparedness.

o   It also passes an image of seriousness with client’s case which may have an impact on the outcome of the case.

o   Time management also involves filing of document in time and bringing in witnesses to Court in time.

·       Maintain the dignity of the profession

o   If judge is already in Court, one should stand, bow respectfully to judge from the doorway before proceeding to seat

o   This is through his conduct and includes observing the decorum that is expected of a legal professional. For example, a trial lawyer should only address the court with permission of court or when required to do so.

o   The dignity of the profession would suggest that the lawyer should observe Court etiquette and act as a professional.

o   Per section 4 of the LSK Act, one of objects for which the Law Society of Kenya is established is to maintain and improve the standards of conduct and learning of the legal profession in Kenya. The LSK has come up with the LSK Digest on Professional Conduct and Etiquette pursuant to this power.

o   Section 81(1) of the LSK Act empowers the council of the society, with the approval of CJ to make rules with regard to the professional practice, conduct and discipline of advocates

·       Should aim to win client’s case but not at all costs.

o   He should always keep in mind that he is not a hired gun and that he owes duties as an officer of the court

o   At the same time, the trial lawyer should zealously prosecute the clients cause but within the bounds of the law, and ethics

 

·       Dress accordingly

o   For example adhere to the Advocates Dress Code released this year.

o   The LSK is mandated under section 4 of the Law Society of Kenya Act as above and this section read together with section 81(1) and section 27 of the LSK Act gives the Society power to make delegated legislation and is the basis on which the LSK makes/made the Advocates dress code revised in January 2013.

 

·       Confidentiality :

o   Information that a trial lawyer obtains about his clients' affairs may be confidential, and must not be used for the benefit of persons not authorized by the client.

o   Its source is a combination of the law of contract and equity arising from the distinctive relationship between lawyer and client.

o    The lawyer is an agent of the client under the law of agency. In contract, the terms encapsulated in the retainer agreement give rise to this duty.

o   Further, equity prohibits unauthorized use or disclosure of confidential information.

o   In Kenya, sections 135, 136 and 137 of the Evidence Act provide protection for information that is made available to a lawyer during the course of interactions with a client. Such information is subject to legal privilege.

o   Rule 20 of the LSK Digest also provides further guidance on the topic with regard to disclosure to the Police and the Tax authorities.

 

2.     Analytical skills and Issue spotting-

·       Ability to identify the issues from the facts

·       Should have practical judgment

o   A trial lawyer should be able to identify the strong points in case along with the weak points.

o   This way, the lawyer will be able to preempt the opposing sides’ arguments and find the most effective ways to deal with them beforehand

·       The trial lawyer should possess the ability to find the law and use appropriate case law after identifying the issues

·       The trial lawyer should exercise diligence and thoroughness when finding case law. A single decided case can make a huge difference in a case and so if the trial lawyer misses that particular case that could have serious ramifications for the client.

·       When analyzing the facts should be able to identify different angles to argue the matter in the court

3.      Excellent Negotiator-

·       A trial lawyer in any situation needs to explore all potential avenues for resolving disputes, including methods which do not involve litigation.

·       The lawyer should have the ability to settle matters out of court such as cash settlements for civil matters and plea bargains for criminal matters.

·       Negotiations should always aim at getting the best result for the client

 

4.      Credibility-

·       A good trial lawyer should first and foremost be honest to his client and then to the opposing counsel

·       Should be honest with the client concerning the case during trial whether positive or negative.

·       On the same note before taking up the case the advocate should be honest about the case to the client on whether their chances of winning.

·       It is the duty of an advocate to be honest to the court as well and thus should not present false documents etc.

·       The trial lawyer should maintain the implicit trust that exists between advocates and the Court.

·       A trial lawyer is not a mere agent because unlike an agent who has no moral and ethical obligations to anyone but his principal, the lawyer has ethical and moral obligations to a multiplicity of stakeholders.

 

5.     Excellent Legal Writing and Legal Research Skills -

·       A good trial lawyer should be have the ability to write creative and persuasive legal arguments

o   Legal writing is not an isolated skill, but an integrated part of the well-recognized task of learning to think like a lawyer and so the good trial lawyer must first and foremost think like a lawyer.

·       The lawyer should be able to draft documents necessary for court litigation.

·       Research skills

o   The lawyer should carry out extensive research into a case before taking it up and at all stages of the litigation thereafter

o   The trial lawyer should possess strong investigative skills

·       The trial lawyer should be organized

o   They should be able to organize the material appropriately

o   They should be able to draft and file the necessary documents in an organized and well thought out manner

6.     Sincerity

·       Should believe, or at least appear to the Court to believe, in the client’s case 100% and defend it with zeal

·       Should be willing to handle clients matters with the attention that the case demands

·       The trial lawyer should be willing to go beyond the instructions issued by the client in a bid to protect the client’s interests

 

7.     Consistency and Reliability-

·       A trial lawyer should build reliability by first always keeping the client up to date with progress of the case

·       They should do so with consistency and develop a relationship of trust with the client

·       It is important for the purposes of building a good reputation for a trial lawyer to avoid dipping his hands into the client’s funds

·       A trial lawyer should always be dependable when conducting his obligations to the client for instance not fail to make an appearance in court

 

8.     Perseverance and Persistence-

·       A good trial lawyer should be able to fight notwithstanding the difficulties experienced in the case

·       He should be willing to follow the client’s matter to its logical conclusion

·       He should be able to handle any bumps on the road

 

9.     Creative

·       Should be able to make compelling arguments in Court both oral and written

·       Should have a command for story telling as Shakespeare said ‘all the world is a stage and we are mere players’

·       Be able to make judge doubt opposing counsel submissions with his sharp thinking and creativity

10.  Confidence

·       The trial lawyer needs to be convincing when presenting matter before the court

·       It is also important that the lawyer is composed when put on the spot

·       The trial lawyer should possess excellent oratory skills-

o   This implies that the lawyer should possess a good command of the official languages: English and Kiswahili

o   The lawyer should also be audible in court

·        

11.  Interpersonal Skills-

·       Should be able to read the psychology of the court as well as that of the client and opposing counsel and act accordingly

·       The trial lawyer should act in a civil manner regardless of the ill feelings that their clients may have towards other people

o   He should be able to disagree without being disagreeable. The lawyer need not result to antagonistic or acrimonious behavior.

o   Whether orally or in writing, vulgar language, disparaging personal remarks or acrimony toward other counsel, parties or witnesses should be avoided at all costs.

o   Lawyers should require that persons under their supervision conduct themselves with courtesy and civility

·       Should be able to relate with other people well so as not to prejudice his client. A trial lawyer who has personal issues with the trial judge for example, puts his client’s case at risk of bias.

 

12.  Communication-

·       Use language that is respectful and that communicates their point effectively.

·       Ability to use plain English effectively when addressing both the client and the Court.

·       Keep the client up to date on the case at all times

·       Good listening skills so that they can be able to get the instructions of the client right

·       Communicate with opposing counsel and inform them of any evidence they have and so on

 

13.   Tenacity-

·       Advocate should not embark on a case unless he is ready to justify it

·       Prepared to defend the action until all proper arguments in favor of it have been exhausted at all court levels permissible under the rules