Unmasking the Seven Secrets of the Greatest Lawyers
from
July/August 2006
James Burnett
In its most common telling, the vignette opens with an attorney visiting his doctor’s office, where he learns that a large tumor is growing inside his skull, treatable only by a complete brain transplant. He is presented with a menu of brain types covering a wide range of price points. Engineer brains, software-programmer brains, rocket-scientist brains—all are good bargains, coming in at less than $10 per unit. The lawyer brains cost much, much more.
“This is a ripoff,” says the incredulous would-be buyer. “How come lawyer brains are so damned expensive?”
The answer: “Do you know how many lawyers it takes to make an ounce of brains?”
Tracing the punch line’s etymology would doubtless lead back to a bitter client with a big bill and an unsolved problem—someone who paid top dollar for legal counsel that either failed to stave off or directly brought about a stinging blow to the bottom line. But the joke also leads to an opposite view: The great attorneys, those capable of finding a solution no matter how daunting the obstacles, can be worth every penny they charge.
Intellect alone is not enough to win cases and complete complicated transactions; a potent IQ is just one of several crucial tools that the highest-achieving lawyers bring to the job. “We take it for granted that these people are intelligent, well trained, and well educated,” says formidable class-action litigator William S. Lerach. “Those are all common. But what separates the special lawyer, the exceptional guy, from the run-of-the-mill technician who just grinds away?” Across disciplines, from bankruptcy to intellectual property to mergers and acquisitions, the answers to that question are remarkably similar. They come down to these seven traits:
Judgment
In every competitive pursuit, the all-stars are said to possess a sixth sense that allows them to see several moves ahead and envision how various moving parts will come together. The excellent point guard in basketball, the excellent chess player, even the excellent construction contractor are all able to anticipate pending roadblocks and opportunities, and position themselves from the very first step to skirt the former and exploit the latter. Talk to attorneys and you’ll hear them ascribe a similar capability to the standard-bearers of their profession. Though they refer to this quality by differing names, the word used most often—and the one at the top of their list of the essential components of exemplary lawyering—is judgment.
Over the course of their careers, lawyers accumulate deep reserves of knowledge about their chosen specialties. But penetrating, say, the intricacies of Sarbanes-Oxley and actually knowing what to do when the law does not point to a clear course of action are not the same. Under such quite common circumstances, impeccable legal judgment can prove a decisive factor. “You may be superintelligent and an expert in a given area, but without it you’re not going to really excel as an attorney,” says Wachtell Lipton’s legendary mergers-and-acquisitions innovator, Martin Lipton. While this radar can be refined with practice, it is fundamentally an inbred trait. “A lot of it is experience, but it’s also intuition, a feeling,” says Skadden Arps’s Robert S. Bennett, whose own famed judgment has been tapped by a dazzling roster of VIPs, including former president Bill Clinton. “It’s abstract, but it is there.”
In law school, an aspiring J.D. is taught to “think like a lawyer” by interpreting the data on hand and applying the relevant statutes and case law. Nancy B. Rapoport, dean of the University of Houston Law Center, argues that this approach is not sufficient when attorneys move from classroom exercises to real-world dilemmas. “We tend to overinflate the importance of law in solving problems. It’s always the law and something else that the client is concerned with. It’s the law, and the fact that the company’s not making a profit. It’s the law, and the regulation won’t let us sell a product,” she says. “The best lawyers are those who view clients’ needs as business problems and not just an opportunity to apply a legal framework. The worst are those who give a legal answer and think that’s going to solve everything. Legal advice comes out of somebody’s budget, and if you get half an answer for 100% of your budget, you really haven’t been helped.”
Prescient decision-making is especially critical in the opening stages of a case, when a lawyer’s choices can determine outcomes for many months to come. “It’s almost like they have a wiring diagram in their head that very early on lets them see, ‘Here’s how we can get to the desired result two years down the road,’” says Bennett of attorneys gifted with this foresight. “Part of the wiring diagram has to be thinking through not only how any individual legal decision will have an impact on the case, but how it will impact the company’s constituencies. You can’t make predictions if you stay just within the four corners of the case. You have to think about the company’s board, its customers or clients, the impact on employees, the analysts on Wall Street, the regulators who may not be directly involved. That’s a very big part of it.”
Think of the premium manufacturers place on outracing their rivals to launch a new product. Sometimes it’s similarly vital for a party in a legal matter to beat its counterparts to the draw. Arnold & Porter partner William Baer, an acknowledged master of antitrust and trade regulation, cites the example of a company facing antitrust charges in a multiple-defendant suit. “It’s possible in those cases to get corporate amnesty, but you have to be the first to request it—only the first corporation to go in gets amnesty,” he says. “It’s a tough thing for a company to process. They see the upside of getting amnesty, but they also see it as an admission of guilt. Helping a company make that assessment in a timely fashion so they don’t lose that first-mover advantage can be critical.”
As a case plays out, great lawyers will use what their clients hope to accomplish as the filter through which they evaluate every possible move. Sometimes that will mean settling even when they’re personally predisposed to continue fighting, or acquiescing to the opposing party’s demands in order to walk away from the table holding items higher up on the wish list. “When you’re in a negotiation, there are a lot of issues you’re trying to get resolved,” says Wilson Sonsini chairman Larry W. Sonsini, the legal guru of technology in Silicon Valley. “It’s very important to be able to exercise judgment and back off one issue, take less there, because you believe another issue is most important to your client. You’ve got to have an eye on where you need to get to.”
This may sound like an approach that almost every attorney would try. But in the heat of battle, many fall well short of the ideal as they get caught up in trying to outmacho one another. “Their hormones work against them,” says Morgan Chu of Irell & Manella in Los Angeles. “I’m referring to men for the moment, but it applies to women too. Some lawyers have to be the loudest, attract the most attention, and never back down. They’re negotiating hard, and everything’s a deal-breaker. And they take the client down a path where the client is going to lose.” Adds William Lerach, who rarely shies away from playing the bulldog in the shareholder suits he brings: “Anybody can be tough, I guess. But not everybody can be smart.”
Simpson Thacher chairman Richard I. Beattie is a noted tough guy, famous for his leveraged-buyout work, notably his representation of Kohlberg Kravis Roberts & Co. in its successful takeover of RJR Nabisco, which made him a key character in the book and movie Barbarians at the Gate. But he is also very smart. Beattie was brought in by Archer Daniels Midland Co. in 1995 after the Justice Department charged ADM with scheming to fix the price of citric acid and an amino acid, lysine, that was used as a feed additive for livestock. It was an especially sticky situation for the agribusiness giant’s chairman at the time, Dwayne O. Andreas. His son and heir apparent, vice chairman and executive vice president Michael D. Andreas, had been fingered as a key figure in the conspiracy. Following the counsel of Beattie and his partner Charles B. Koob, ADM decided to settle with the government by pleading guilty and paying a $100 million fine. “It was a difficult process to go through,” Beattie says. “The board members had been selected by Dwayne, and they were loyal to him. Something like that takes judgment to help them find their way through. It’s very, very easy for some people to get emotional about things.”
Because Beattie brought a cool-headed perspective to the matter, he was able to steer his client onto a course that would spare it unnecessary additional pain. The deal required ADM to cooperate with prosecutors in building a case against the junior Andreas, who was ultimately sentenced to three years in prison. But it also called for the Justice Department to drop its investigation into the company’s alleged actions in the far more lucrative corn-syrup market—sparing ADM the threat of even more explosive revelations and pricier penalties.
Creativity
“Everyone can solve the easy problems, most the medium, and a smaller number can solve the more difficult ones,” says Morgan Chu. “It’s when all the precedents and statutes say no. How do you legally, lawfully, and ethically achieve the client’s objective?” If you’re a standout like Chu, you do it by tapping your ample imagination and creativity. Years ago, when he was just starting out as an attorney, he worked on a tax case involving the master recordings for vinyl music albums. More than a decade later, he found himself toiling away to little avail on a seemingly unrelated patent dispute, in which his firm was seeking an injunction to stop the mass production of a U.S. software program in Europe. “The easy answer is, ‘You can’t get that injunction,’” Chu says. “Patents are territorial, and our client’s applied only to a product manufactured in the United States. At the time there was no existing case law supporting a foreign reach.” But then Chu’s long-ago dealings with the phonograph records popped into his head. If those masters were covered by international copyright protections, why couldn’t the same concept apply to the original diskettes that served as a template for subsequent copies of a computer program? It was, he says now, a “raw analogy.” But it succeeded in winning protections for his client’s assets.
Consciously or otherwise, an attorney who seeks to sniff out innovative solutions is embracing a theory of legal strategy expounded by law professors Lynn M. LoPucki of UCLA School of Law and Walter Weyrauch of the University of Florida Levin College of Law. Rather than regarding the court system as the ultimate arbiter of legal disputes—the traditional view—the two academics argue that cases are contests of skill in which “superior lawyering can determine outcomes.” It makes sense that great lawyers in Chu’s field of intellectual property would gravitate toward that approach; in their domain, cutting-edge issues are routine and the law is continually evolving to keep pace with the technology it governs.
But creativity can prove a powerful tool for attorneys in any practice area, including the rough-and-tumble world of litigation. Lerach, for example, uses ingenuity to keep the pressure on an opponent. “Microsoft, GM, Ford—those guys get a big lawsuit laid on them every 72 hours. They get sued all the time,” he says. “What makes your case against them special? I hate to use the word ‘torture,’ but what can you do to make their life uncomfortable, miserable, make them focus on you? Maybe rather than just going through the motions of a lawsuit, you try to get a preliminary injunction or an attachment order and get into court and get into discovery earlier than usual. Or rather than just rolling over on a standard confidentiality agreement, you move to unseal critical documents, put them out there where prosecutors, competitors, government agencies can see them. Get the deposition of the chairman of the board. Get the disgruntled mistress of the CFO. There’s all sorts of stuff you can do. There’s a solution to every problem in the world. You just have to figure out what it is.”
It seems safe to say that those defending a company against a lawyer like Lerach need to be equally clever in coming up with ways to fend off inventive assaults.
Objectivity
In a sense, a great lawyer is like the hairdresser who talks a regular out of going ahead with the unflattering new style she was dead set on when she sat down in the chair. Both spare their customers embarrassment by telling them something they don’t necessarily want to hear. Bracingly honest counsel requires a surplus of confidence—a trait that for many top attorneys is as much a byproduct of their elevated station as it is one of its foundations. And without that straightforwardness, it’s impossible to display the canny judgment clients so prize.
The most sought-after lawyers, says Bill Baer, have “an ability to step back and look at things in a fair and objective fashion and advise a company to look at the pros and cons and risks of a particular course of conduct. In some ways, it’s easier to be an advocate than it is to suggest a client may have some real exposure in connection with a problem.” An attorney willing to point out the missteps of a corporation that is providing him with a steady stream of billable hours will often possess a pretty finely tuned barometer for right and wrong in his own professional actions. Inevitably, he will find himself at loggerheads with a client who wants to pursue measures he cannot countenance—and that brings up another common denominator of great attorneys. “A superstar lawyer is a lawyer who will tell a client, ‘I’m not going to do that. If you want to take your work somewhere else, that’s fine by me,’” says Robins Kaplan Miller & Ciresi’s Michael V. Ciresi, whose milestone product-liability work as a plaintiffs’ attorney has resulted in record settlements with tobacco companies, among others. “Every superstar,” he says, “will have turned work down.”
Integrity
There is one limit to how well mental agility can serve the pursuit of legal victory: It’s never okay to find a clever way to weasel out of a commitment. Integrity is much more than just an empty word in a law-firm slogan. It’s a competitive advantage.
An attorney’s trustworthiness comes into play when he or she is devising a plan and when that plan is being implemented. Indeed, integrity is the quality that bridges the first three traits of great lawyers, which deal with strategizing, and the last three, which involve the execution phase. Clients need to feel comfortable with their counsel if they’re to divulge, right up front, all the information that may come to bear on the case—information that a lawyer needs in order to make savvy decisions about how to proceed. Once the briefs are flying, having a reputation for being an honest broker can yield a lawyer informal summits with key players, the kind of sit-downs that can be instrumental in achieving swift and desirable resolutions. “If you have a reputation for being a straight shooter, an honorable advocate,” says Robert Bennett, “you’ll have access to whomever you need. And I don’t mean that in an improper way.”
In 1983 Michael Ciresi, then a 37-year-old partner with a Minneapolis firm, squared off with lawyers defending A.H. Robins Co., maker of the Dalkon Shield. Though the intrauterine birth-control device had been linked to several deaths, A.H. Robins had up to that point won most of the actions brought against it. As an important part of his case, Ciresi and his colleagues spent four months and many thousands of dollars laying out how the IUD had left his client, a 35-year-old waitress named Brenda Strempke, unable to have children—only to have Strempke reveal, before the jury was to begin deliberating, that she might be pregnant. The revelation threatened to torpedo Ciresi’s carefully crafted argument. But to him, “it was a no-brainer” to go to the judge, who ordered him to disclose the new information to the jury. Both legal teams had war rooms set up on opposite sides of one of the courthouse’s hallways. Ciresi says, “I can remember after walking back from telling the judge, I could hear the other side call their client, laughing their heads off. Needless to say, it was not a good day.”
Nonetheless, he still succeeded in winning a $1.75 million verdict against A.H. Robins, $250,000 of which was compensatory damages and the other $1.5 million punitive. A year later Ciresi helped negotiate a $38 million settlement for 198 women who had used the Dalkon Shield. And he had cemented his reputation for integrity.
“To have a regulator, opposing counsel, or judge take you at your word is an invaluable tool,” says Akin Gump chairman R. Bruce McLean. “Great lawyers don’t have a reputation where people say, ‘Yeah, he’s good, but he’s got a lot of sharp edges and you’ve got to watch what he says.’ Those lawyers may make a lot of money, and they may be successful. But they aren’t truly great.”
Affability
When a typical executive sits for the Caliper Profile, a popular personality test, it usually takes about an hour and a half to answer all the questions. Larry Richard, a consultant with Hildebrandt International who has administered the Caliper to more than a thousand lawyers, has found that they sometimes need more time than that “because they overanalyze the items.”
The Caliper test measures 18 separate traits, plotting results in each against an average score of 50% for the population at large. Nowhere do lawyers deviate more from the norm than in the trait of skepticism. As a group, they score in the 90th percentile. Richard, who is an attorney in addition to holding a Ph.D. in psychology, says, “This is a very useful trait for lawyers, since in representing their clients effectively they are commonly called upon to question data, propositions, assertions, documents, and so on.” Lawyers also tally numbers nearly as high for urgency, reflecting their hunger for efficiency and desire to get things done. “Being high in urgency is a good thing for practicing law, because clients want action,” says Richard. In several other areas, however, attorneys fall below average, and those patterns contribute to unflattering misperceptions about the legal field. Much as we recognize the neat plot lines and frequent prosecutorial fireworks of courtroom dramas as complete bunk, we still often think of the Hollywoodized lawyers—outgoing, charming, loquacious—as more photogenic versions of the real thing. But according to Richard, the lawyers he’s studied check in at less than 15% on the sociability scale. Seven of 10 also score low on resilience, the term the Caliper uses as shorthand for the ability to handle negative feedback. A person “can be very confident and very low in resilience at the same time,” Richard says. “You criticize them and they come back at you with, ‘Let me tell you three reasons why that’s complete rubbish.’”
But last year Richard conducted a separate study on the so-called emotional intelligence of attorneys who were listed in a book honoring the top lawyers in the country. He determined that the stars scored at about the national average in emotional intelligence, and six points ahead of their more ordinary counterparts. That doesn’t speak so well of the average attorney, however. “I would say that for the most part, the top lawyers in the country have better emotional-intelligence skills than the average lawyer, and in this respect they are more like the average citizen,” says Richard.
Though not as celebrated as a stratospheric IQ, solid social skills arguably play just as big a role in day-to-day effectiveness. Attorneys who have them tend to feel comfortable interacting with new people, so they’re good at rainmaking. Since they welcome outside input, they’re better equipped to handle complex cases involving case law beyond their purview. They know how to switch off their skepticism and urgency when appropriate, and are therefore able to avoid what Richard calls “analysis paralysis” and to refrain from issuing brusque replies to inquiries from clients and well-meaning colleagues.
Obviously there are exceptions to this rule: the genius securities lawyer whose aloofness is regarded as charming by grateful corporate counsel, the swashbuckling M&A partner who racks up wins through sheer aggression. But with a frequency that cannot be coincidental, the most sought-after attorneys come across as well adjusted. “Being a nice, likable person matters,” says Sachnoff & Weaver’s Carolyn H. Rosenberg, an acclaimed expert in directors’ and officers’ liability insurance. “Superstar lawyers are surprisingly affable.”
Rosenberg makes a practice of sending clients copies of newspaper articles she thinks they might find useful—even when a story addresses a topic that, while relevant to a company’s bottom line, isn’t linked to work she or her firm is doing for the company. While putting in some laps on a hotel treadmill during a Puerto Rican sojourn with her family, Rosenberg spotted interesting stories in USA Today and one of the local papers. She had the pieces faxed to her office to be converted into PDF files and returned to her via e-mail, then used her BlackBerry to zap them to clients at a company she thought would benefit from the information. “Always having your clients’ interests at heart, that peripheral vision, it’s second nature,” she says. So, it seems, is working during her off-hours. On one occasion, when she interrupted her down time to send some information to a client, he replied, “Thank you. But stop working on vacation.”
Communication Skills
Last fall the regional trade newspaper
Massachusetts Lawyers Weekly
invited a panel of eminent attorneys to re-create their most memorable courtroom oratory at a scholarship fundraiser in downtown Boston. The battle of the legal stars made for pretty good theater, particularly Jan Schlichtmann’s impassioned delivery of his closing statement against companies accused of producing cancer-causing pollution, which was memorialized in the movie A Civil Action. But to take the performances as proxies for what earned the headliners their renown in the first place is to oversimplify the communicative talents of great lawyers. They often do their best and most momentous talking far from a jury box.
First-rate attorneys, says Bruce McLean, have a “personal charisma, not in the movie-star sense but in terms of an ability to come into a room and speak with authority.” Sometimes that means persuading a judge to rule in their favor during a hearing, or nailing a carefully prepared presentation that keeps a deal alive. Just as often it entails adjusting on the fly and cutting right to the chase upon learning that a 30-minute appointment has been cut down to 10. Great lawyers also communicate well in less formal settings, when what a client may want most is an unspoken message that everything’s under control. So over dinner or lunch, instead of droning on about applicable precedents, “you’d be talking about sports or family,” Rosenberg says. “One, the client’s getting a sense of how your mind works. They want a sense that you’re not a one-trick pony, or get so focused on one thing you can’t string together thoughts.” Moreover, she says, this kind of chitchat “is a great way to see if someone listens. You don’t have to prove you’re interested in them by offering tickets to a major sporting event or rock concert. All they want to know is that they’re in good hands.”
Hard Work
One benefit enjoyed by partners who embody the attributes outlined here is how eager their firms’ brightest associates are to work on their cases. But even with a stellar team for every project, there’s no getting around the need to burn the midnight oil alongside those junior colleagues. “We wouldn’t use this in our recruiting materials, but the fact of the matter is that over the course of a career you put the needs of clients above your own,” says McLean. “That requires a lot of hard work, and it’s very demanding, because you need to be available when your clients need you to be available. There’s not a lot of control over your own life. It’s a tough business, and it requires a tremendous amount of dedication.”
Even the most accomplished lawyers face regular setbacks. They’re just better than others at not letting those roadblocks slow them down. “The quality of indefatigability in pursuing whatever it is you’re pursuing, that ability to suffer interim disappointment and defeat, then get up the next morning and keep swinging and pushing ahead—there’s no substitute for that,” says William Lerach. “When I ran into a buzz saw in my WorldCom litigation and got crosswise with the judge”—who ruled that he’d misled clients while luring them to file individual suits through his firm rather than join the class action against the disintegrating telecom—“a lot of people would have given up. We would not cave in, despite being bludgeoned.” Even after a judge warned them about the risks of opting out of the class, almost 70 plaintiffs—including large pension funds, insurance firms, and institutional investors—decided to stick with Lerach, who last year secured a $651 million settlement on their behalf, plus $100 million for legal fees and expenses. “There are some defense lawyers that are a lot more tenacious than others,” Lerach says. “I’d rather have the untenacious guy to go up against.”
If lawyers rise to the top of their profession by outhustling their rivals, they stay there by continuing to plug away well after the perks that come with their level of achievement could have sapped their drive. “People in business, some sweat the details and some don’t,” says Morgan Chu. “Some work long hours, some don’t. Often people who are very successful ratchet back a bit. They’re no longer willing to work so hard. In lawyering, to be really good you’ve got to work really hard. There’s no way around that.” Uncommon results require uncommon effort.
