The myth of the brilliant lawyer

A BRILLIANT LAWYER IS AN IDEA.

The concept of the brilliant lawyer has caught the imagination of society. The description is casually used in the media, schools, educators, and just about anyone who has an opinion about lawyers.

Since childhood, I have encountered the phrase used in various literature from novels, movies, to daily publications. Fictional characters are immortalized thanks to the big screen, while non-fictional individuals have been elevated to a pedestal to serve as a role model (or, in some cases, as a rally point for noteworthy causes, while others to push for their agenda).

John Grisham can probably lay claim to have contributed much to the development of the idea through his novels which have entered the global consciousness. Want proof? Ask any law student or lawyer if they have read at least one of his novels. The ubiquity of his stories have captured the imagination of many and permanently cemented in their consciousness with the help of movie-adaptations thereof, particularly if the main character is played by a celebrated actor (remember Tom Cruise in the Firm?).

Yet, brilliant lawyers do not exist.

Before we go any further, the lawyer in me (and perhaps the philosopher as well) is telling me that we should first have an operational definition of the brilliant lawyer.

The widely accepted idea of a brilliant lawyer is one who is able to “crack” a losing case and turn the tide in his favor which often results in him winning, at times getting an acquittal (remember: if the gloves don’t fit, you must acquit) or successfully getting a plaintiff his much deserve justice as reflected in the millions of cash awarded. This is often manifested by coming up with a novel or though-provoking argument, which all other lawyers before him have not thought about. Hence, the usual praise of “brilliant” and the subsequent use of thereof as an adjective to the word lawyer.

We don’t see much or hear a lot of stories involving commercial lawyers who are able to similarly “crack” a contract being drafted that could improve the client’s business or further protect his Company from any liability. Nor do we regularly encounter stories of lawyers who have successfully won negotiations resulting in the avoidance of conflict and/or resulting in a win-win situation for all concerned parties.

What registers thus most of the time in the imagination is the first one, the litigator who is the modern-day equivalent of a champion in the dark ages. The courageous lawyer who asks the difficult questions in a cross-examination resulting in difficult witnesses to admit to wrongdoing (did you order the code red?!). Well, a few really good trial lawyers can handle the truth.

In actuality, courtroom drama is very rare. There are enough rules of procedure in place to avoid tension (or shouting) during trial. Notably, litigators are barred from badgering a witness and thus the opposing counsel is allowed to object if the witness is already being harassed, for a lack of better word. Hence, litigation for the most part is a matter of going through the process of presenting evidence (and not debate!). Which side wins, at the end of the day, is a matter of evidence and proof.

The absence of drama in a court proceeding is more pronounced in the Philippine context where trial is mostly pleading-based (i.e. court submissions). There are no opening statements and closing summation for an Alan Shore to show off the brilliance of one’s legal mind. (I do think Boston Legal is by far the best legal series made for television.)

In addition, most courts do not allow for cameras to allow the media to cover the proceedings. While a case being heard is generally public in nature, judges have the discretion to regulate what happens in their courtroom (or sala, in the local parlance). The result is thus the observance of the solemnities and formalities. No drama.

Brilliant lawyers who are litigators thus do not exist, at least using our operational definition. Some may argue that senator-lawyers during senate investigations or impeachment proceedings are “brilliant lawyers” every time they say something intelligent or provide for insight. One can argue that they cannot be counted with the legal counsels who do not have the luxury of time and show their eloquence before a judge who can easily cite them for contempt for taking too much time to speak.

What I have actually noticed is that there are lawyers who are effective in what they do. Their education, training, and experience have equipped them with the knowledge and technical skills to address the problems of their clients or improve their condition. At the end of the day, it is the value of the services to the client that matters. Value is often tied to the results that were provided by the lawyer.

Such a legal professional is described as an Effective Lawyer. They do exist unlike the fictitious brilliant lawyer. Is there really a difference between the two? The main characteristic that separates that them is that the effective lawyer is known for getting things done, while the brilliant lawyer is known for coming up with a (damn) good argument. The effective lawyer starts with end-goal in mind and finds a way to get there, while the brilliant lawyer conjures up bridges as they go along. The effective lawyer is a coalescence of a legal mind and pragmatist, the brilliant lawyer is a pure intellectual (or artist).

There are no brilliant lawyers, there are effective lawyers who can get things done.