Becoming an Effective Litigation Attorney or Leader

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On November 25th, the Berkeley Center for Law & Technology, in collaboration with Winston & Strawn and the ABA Antitrust Unilateral Conduct Committee, held the NextGen Judicial Panel, a program dedicated to helping young lawyers hone their skills as advocates. The event featured a distinguished group of judges: the Hon. Philip Halpern of the Southern District of New York, the Hon. Yvonne Gonzalez Rogers of the Northern District of California, the Hon. Jacqueline Corley of the Northern District of California, and the Hon. Michael Wilner, formerly of the Central District of California. Together, they shared invaluable advice on what makes a great litigation attorney. Their perspectives not only addressed technical skills but also the nuances of professional demeanor and case preparation.

Summary of Key Points

The Power of Concession: Conceding minor points is crucial to build credibility and show focus on core aspects of the case.
Courage, Credibility, and Conversational Advocacy: Avoid sticking rigidly to scripts; instead, respond directly to the judge's concerns and speak plainly.
Know Your Judge: Adapt your presentation style to the judge’s temperament and preferences.
Operating in the Gray: Judges often operate in the gray area between black and white; effective litigators navigate this by presenting balanced arguments.
Writing, Literacy, and Preparation: Know your case deeply, vocalize arguments, and avoid over-relying on notes.
Memorable Moments: Always be prepared for unexpected questions, even if you are not the lead attorney.
Arguments and Best Practices: Speak at an appropriate pace, maintain eye contact, and focus on persuading the judge rather than opposing counsel.
Pro Bono Work and Community Involvement: Seek pro bono opportunities, find a mentor, and get involved in community activities for a well-rounded perspective.

The Fox: Cleverness, Adaptability, and Leadership

The fox is clever, adaptable, and resourceful, embodying the essential traits of an effective litigator and leader in complex situations. Using its wits to outmaneuver opponents, the fox employs strategic concessions, such as letting go of minor, unwinnable points, to focus on core issues while avoiding unnecessary battles. It knows when to let go to survive and thrive, understanding the importance of conceding to build credibility and maintain focus on the arguments that truly matter.

The fox's adaptability allows it to tailor its advocacy to the preferences and temperament of different judges. Whether dealing with a judge who desires detailed exploration or one who prefers concise, direct presentations, the fox demonstrates a keen sense of observation. Its sharp instincts keep it attuned to changes in its environment, enabling it to stay alert and agile, pivoting strategies effectively during courtroom exchanges or negotiations.

The fox possesses a deep knowledge of its surroundings, including the legal landscape and the specific strategies of opposing counsel. It knows its territory inside and out—whether it's the details of the case or understanding the unwritten rules of courtroom dynamics. The fox's resourcefulness is evident in its thorough preparation, vocalizing arguments, simplifying complex points, and making each interaction impactful. The fox doesn't simply follow a set path; it carves its own way thoughtfully, demonstrating the courage to move beyond rigid scripts and speak directly and plainly.

Beyond the courtroom, the fox’s qualities extend into leadership and community involvement. The fox is a natural networker, building alliances and partnerships that help achieve favorable outcomes and gain support in complex cases. It understands the value of community and treats others with empathy, fostering relationships that extend beyond mere transactions.

The Power of Concession

A core theme that resonated with the judges was the importance of knowing when to concede. Concession is a powerful tool that signals to the judge that you are focused on the core aspects of the case. Conceding, particularly when a point is not winnable, demonstrates humility, confidence, and realism—all qualities that build credibility with the court.

Conceding appropriately is also beneficial in negotiations outside the courtroom. Giving ground on minor issues fosters an atmosphere of good faith, making it more likely for opposing counsel to reciprocate. Ultimately, concession, when used thoughtfully, is about focusing on what matters most and establishing oneself as a credible advocate.

Courage, Credibility, and Conversational Advocacy

The judges also emphasized the importance of not clinging rigidly to a prepared script. A good litigator should have the courage to concede and move on, rather than falling into the trap of arguing minor points that may be irrelevant or ultimately damaging to their credibility. This involves knowing your case deeply, being prepared, and being adaptable enough to pivot when needed.

It was emphasized that attorneys who speak plainly and directly are appreciated. This means understanding the burden on the judge's mind and responding to that rather than rattling off pre-prepared statements. As It was noted: Talk to the judge and not at the judge. Litigators need to assess the judge’s mindset and concerns, tailoring their communication accordingly. In essence, you need to treat advocacy as a conversation where you are attuned to the other person’s thoughts and needs.

Know Your Judge

Understanding who your judge is forms an essential part of effective litigation. As It was highlighted: "Know your judge." Some judges are incredibly well-prepared and want a deep dive into every argument, while others prefer succinct presentations that get straight to the point. The key is flexibility—adapting your approach based on the temperament and preferences of the judge. This understanding makes your advocacy more compelling and ensures you’re providing information in a way that’s most useful to the judge's decision-making process.

Operating in the Gray

Panelists highlighted that judges often operate in the gray area between the black-and-white boundaries of the law. Litigation isn’t always about finding a clear, absolute truth—often, it’s about understanding where your case falls on the spectrum between two extremes and persuading the court why it should be decided in your favor. For example, in a case involving contractual disputes, it might be effective to acknowledge the valid points of the opposing side while demonstrating how your interpretation aligns more closely with fairness and precedent. The art of effective litigation involves navigating this gray area skillfully, presenting arguments that resonate as reasonable and balanced rather than rigid or overly aggressive.

Writing, Literacy, and Preparation

Write things out. Know your case well enough not to read from notes, advised one panelist. While having notes isn’t inherently wrong, there’s a difference between using them as an aid and becoming overly reliant on them. An effective advocate demonstrates a level of familiarity with the case that suggests ownership over every detail. This doesn’t mean reciting arguments by rote; rather, it means internalizing the key points well enough to have an organic, flexible conversation with the court. Panelists prefer attorneys who have deep literacy in their cases—those who can confidently field questions and convey the main ideas without appearing overly rehearsed.

Additionally, preparation includes vocalizing arguments before stepping into court. Speaking arguments aloud allows attorneys to identify areas that are unnecessarily convoluted and to hone in on the key points that will resonate most effectively with the judicial panel. Simplifying arguments is crucial—attorneys should focus on what will persuade the panel to their side. Simplification doesn’t mean dumbing down but rather distilling the argument to its most essential form.

Memorable Moments

Panelists shared some memorable moments that illustrated the unpredictability of courtroom proceedings. One common anecdote involved judges calling on attorneys and experts who were not seated at the counsel table, emphasizing the need for readiness at all times. Whether or not you are the lead attorney, being prepared for impromptu questions is crucial in building a reputation for reliability and competence.

Arguments and Best Practices

When presenting arguments, practical tips were shared to ensure efficiency. For instance, bringing a copy of the complaint when moving to dismiss is a small but crucial step that can prevent unnecessary delays.

When answering questions from the bench, it is important to avoid stalling phrases such as "Wait a minute, I will get back to you later." Knowing the case deeply and answering directly reinforces credibility. Panelists also emphasized that judges are, after all, "nice folks." Respect and directness go a long way in building rapport.

Best practices also include speaking at an appropriate pace. Some attorneys, in their eagerness, talk too fast, forgetting that the judge—the ultimate decision-maker—is in the room and needs to follow every point made. Maintaining eye contact is another critical practice. Nervousness often prevents junior attorneys from establishing eye contact, but doing so demonstrates confidence and connection. Additionally, familiarizing oneself with the courtroom before the actual day—visiting a day ahead—helps reduce distractions and allows attorneys to focus better on their advocacy. Grouping these practices together ensures that an attorney is both mentally and physically prepared to present effectively.

Another key takeaway was to focus on addressing the judge rather than getting entangled in a confrontation with opposing counsel. Ultimately, you are arguing to persuade the judge, not to "win" against the other attorney. Being friendly and courteous to the judge’s staff also matters significantly. Judges often speak with their staff, and being respectful can positively influence how you are perceived.

A humanistic approach to litigation was also highlighted. Lawyers should remember the real people behind the cases—clients, witnesses, and even opponents. Maintaining a reputation for fighting for just causes, rather than for the sake of fighting, sets a good lawyer apart. Clients should be seen as partners, and building trust with them is crucial not only for the success of the case but also for career advancement.

Pro Bono Work and Community Involvement

Panelists encouraged young attorneys to seek out small cases, including pro bono opportunities. In the Ninth Circuit, pro bono cases guarantee speaking opportunities, providing valuable experience for junior lawyers. Limited representation can also be an effective way to gain courtroom exposure. Additionally, attorneys should not hesitate to ask for feedback—whether from the court reporter or even the judge. No judge will decline a reasonable request for constructive feedback.

Finding a mentor was stressed as essential for all new lawyers. Mentorship provides guidance that cannot be learned solely from textbooks or law school classes. To effectively seek out a mentor, junior lawyers should look for someone whose career path aligns with their own aspirations, and who is willing to invest time in their development. Qualities to look for in a mentor include approachability, experience, and a genuine interest in teaching and guiding others. Junior lawyers were also encouraged to take initiative—whether that means asking a partner for more responsibilities, directly seeking out mentoring opportunities, or building a network that includes supportive senior colleagues.

Getting involved in community activities, such as volunteering at local high schools or participating in charity events, was also recommended. Engaging in activities outside the legal world provides a broader perspective, which ultimately contributes to becoming a more well-rounded and empathetic advocate.

Simplifying the Argument

One panelist emphasized the importance of simplifying complex legal arguments. What will end up putting this panel on my side?. This rhetorical question highlights the need to boil down even the most intricate legal concepts into their simplest and most persuasive form. By demystifying the rules and making them accessible, an attorney not only demonstrates a mastery of the subject matter but also builds a compelling narrative that resonates more effectively with the court.

Simplification doesn’t mean dumbing down your argument; it means distilling it to its most essential and persuasive components. The judges stressed the importance of vocalizing arguments before stepping into court. This process allows young attorneys to identify areas that might be unnecessarily complicated or convoluted and to hone in on what will make their arguments resonate most with the judicial panel.

Networking, Mentorship, and Stand-Up Opportunities

Beyond courtroom techniques, the panelists offered advice on professional development. Networking and mentorship were highlighted as critical components of early career growth. Getting to know more experienced attorneys and learning from their journeys can provide invaluable perspective. Mentors can help navigate the nuances of courtroom behavior, client management, and career decisions.

The panel also spoke to the importance of stand-up opportunities in court—essentially, getting younger attorneys the chance to present and argue in front of a judge. Programs like the NextGen Lawyers Group are vital in providing these opportunities, which help new advocates develop confidence and sharpen their skills in real-world settings.

Conclusion

The NextGen Judicial Panel provided a wealth of advice for aspiring litigators, emphasizing that becoming an effective litigation attorney is as much about mastering technical skills as it is about understanding the dynamics of advocacy. From the power of strategic concession to the importance of simplifying arguments and knowing one’s judge, the lessons shared by these esteemed judges paint a clear picture of what sets great attorneys apart from the rest. Litigation is an art that requires both preparation and adaptability, a deep understanding of the law, and an ability to communicate clearly and persuasively—qualities that all young advocates should strive to cultivate as they grow in their careers.

These lessons are not just valuable within the context of litigation but also apply across multiple areas of professional and personal development. In negotiations outside of court, the power of concession helps in establishing good faith and finding mutually beneficial solutions. Understanding the humanistic aspects of advocacy and treating clients as partners can translate into building strong relationships as a startup founder or business leader, where empathy and partnership are crucial. Best practices like vocalizing arguments, maintaining a measured pace, and making genuine eye contact are equally effective in boardroom presentations, investor meetings, and other professional settings where persuasion matters.

Moreover, the emphasis on community involvement and pro bono work reflects the importance of maintaining a balanced perspective. Engaging in broader activities beyond legal practice, such as charity work or mentoring, can significantly enrich one’s worldview and enhance interpersonal skills. This broader perspective is highly beneficial for founders of startups, professionals in leadership roles, and even during negotiations for business deals, where understanding different perspectives leads to better decision-making.

Whether it’s stepping into a courtroom, pitching an idea to potential investors, negotiating a deal, or simply leading a team, the principles of credibility, preparation, empathy, and adaptability outlined above are universally applicable and instrumental in achieving success across various aspects of one’s career and personal development.

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