How Leading Lawyers Think: Expert Insights Into Judgment and Advocacy

Lisa Cherkassky (Bradord University Law School, Bradford, UK)

International Journal of Law and Management

ISSN: 1754-243X

Article publication date: 11 May 2012




Cherkassky, L. (2012), "How Leading Lawyers Think: Expert Insights Into Judgment and Advocacy", International Journal of Law and Management, Vol. 54 No. 3, pp. 243-245.



Emerald Group Publishing Limited

Copyright © 2012, Emerald Group Publishing Limited

Randall Kiser, in his new book How Leading Lawyers Think, provides us with an intriguing insight into the accomplished minds of lawyers at the top of their game. Kiser has interviewed 78 attorneys, all with a broad range of experience, to bring us a unique and revealing account of the world of advocating, negotiation, mediation, prediction and litigation from those who know it best.

The book is split into five parts: roles and responsibilities, frameworks and connections, feelings and traits, techniques and strategies, and learning and advice. The book begins with a detailed explanation of the many different roles found within the court system. The role of attorney is explored first, delving into the emotional states of commitment, empathy, motivation and personal values. Kiser imparts his view of empathy after interviewing many attorneys: “the risk in assuming responsibility for cases is that attorneys may personalise the case and become so emotionally involved in the client's representation that they lose their objectivity.” (p. 14). This view is directly followed by advice from the attorneys themselves – a support system that is woven throughout the book – adding a unique depth to the dialogue that helps to set the scene for the reader:

[attorney advice] I think it's a requirement of the job for an attorney to be passionate, but getting emotional is when the attorney takes on the client's emotions and they get upset and start yelling and screaming because they are feeling the same way as the clients (p. 14).

This double‐layered approach adds considerable strength to this book and helps the reader to understand the practical issues of advocating from an inside perspective. A shorter section in part one explores the role of clients, with reference to three leading models of client counselling: “forceful educator”, “benevolent authoritarian” and “dispassionate advisor” (pp. 31‐2). The benevolent model has a significant effect on the lawyer‐client relationship according to Kiser: “the attorney probes gently to ensure that the client is considering all possible consequences, producing mature, considered and morally defensible decisions that reflect the client's better nature.” (p. 30). This is a good example of how Kiser places leading theories into a practical context to illustrate to the reader how a lawyer might alter his mediating role according to his environment, his case, or his client.

Part two is the smallest section of the book but explores in detail the importance of “connectedness”. This is particularly fascinating when viewed from the perspective of a more “social” study attorney, demonstrating that “connectedness” do not have to originate from the work place:

[…] for attorneys enjoying relatively affluent lifestyles, staying connected is difficult. A special skill of the study attorneys is their deliberate use of multiple sources to maintain connectedness and test their opinions many times before trial (p. 64).

Vital social skills are examined further in part three of the book which introduces the element of psychology into the practice of advocacy. The consequences of mixing emotions with law, for example, is demonstrated well by the extracts from the study attorneys:

[attorney advice] emotions only sustain you for so long. But it is also a damaging tool. I've seen an attorney get too emotional – gets sidetracked, loses concentration. I think emotion is a blinder (p. 79).

This part of the book also includes an insight into realism, flexibility, adaptability, creativity, tolerance and intuition. A novice reader may be surprised to learn that a lawyer must display these “survivor traits” (p. 98) in order to perform at his very best, but Kiser ensures that the intrinsic link between emotion and the practice of law is made clear:

[…] balancing emotion and thought, the study attorneys demonstrate the survivors’ skill of intense realism. Their skill in representing clients is not founded on the ability to contort a few facts into a positive narrative but rather the power to comprehend all facts and build a persuasive, legally cognisable plan for recovery or defence (p. 99).

The fourth part of the book is the largest, and introduces a collection of professional skills that lawyers must perfect to be at the top of their game, including case evaluation, client interviewing, negotiation, mediation and recognising mistakes. A particularly insightful section is that which examines client credibility. The dialogue from the study attorneys reveals that “likeability” is very high on the list when it comes to case evaluation, because it effectively tips the scales in the attorney's favour:

[…] the jury has to like you and your client. To some degree it is a beauty contest. I hate to say it […] number two after “fairness” is the likeability factor – the person who is open, humble, has a friendly demeanour. The plaintiff was like everyone's grandfather. The other side did not see it – that's where they misevaluated it (p. 138).

The preconceptions are clear, but the reader is fully informed. Part five finally explores career development and provides advice from the study attorneys, presenting the many lessons learned through years of experience: “try not to think it's a game […] don't be afraid to know your limits […] don't be cocky for the first ten years […].” (p. 267).

Kiser successfully accomplishes a thorough and insightful look into the real lives and pressures of being a practicing lawyer.

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