Updated: Oct 26, 2020
The Essential Skills form the second pillar of the Litigator's Foundation. They are the tasks that the Litigator must perform with excellence to accomplish the Mission.
Part of the frustration of learning to be a Litigator is that there is no basic training that teaches the Essential Skills of Litigation
Every occupation has its essential skills, those things that absolutely have to be done with excellence for the job to be properly performed. Some fields are better than others at making clear what those skills are. For instance, the Army taught me that the essential skills of the infantryman were to shoot, move and communicate. First I was taught those skills at a basic level (that’s what Army Basic Training is) and later, as my career progressed, I was taught to shoot, move and communicate at ever increasing levels of complexity.
Part of the frustration of learning to be a Litigator is that there is no basic training that teaches the Essential Skills of Litigation. Law schools do a good job of teaching the law and how to apply it in the abstract, but leave the practical skill of using the law in service of actual clients to the firehose of learning that is a new lawyer's first five years of practice. For a soldier, that would be like never learning to shoot his rifle until he found himself in combat for the first time. He would be lucky if he could hit the broadside of a barn.
But that is where I found myself on my first day as a lawyer. Actually, it was worse than that. Not only did I not how how to do what I was supposed to do with excellence, I didn’t even know what I was supposed to do, because I had no idea what the Essential Skills were. Not only could I not hit the barn, I couldn’t even see it.
As a result, I just put my head down and tried to be excellent at everything, which meant (not surprisingly) that I wasn’t even mediocre at anything. Looking back, it reminds me of being a new father. Before the birth of our first daughter, my wife and I bought every baby-contraption out there because we didn’t have the experience to discern between what was essential and what was (at best) nice to have. The diaper-changing equipment alone took up half the baby’s room.
By the time we had our second daughter most of that stuff was in the basement because we had learned that it wasn’t essential. Through experience, we knew that we only needed a box of diapers, a pack of wipes, a tube of rash cream and some plastic bags from the grocery store (to wrap up the dirties). These were the essentials—everything else was a bunch of crap (so to speak).
Knowing that I only had to be excellent at Cross, Close and Counsel freed me to move everything that wasn’t integral to that pursuit into my emotional basement
The process I went through to learn the Essential Skills of the Litigator was similar, but took a lot more time and pain. In fact, I might never have figured it out had it not been for a friend of mine who had me write down every single thing I did at work without stopping to try to prioritize anything. If it was something I did, then I was to write it down. That took me a few days because my list ended up filling four legal pages. Then my friend asked me to identify the tasks on the list that were essential to being Missional. At first I doubted it could be done, but after three hours of sorting I was able to narrow it down to three Essential Skills: Cross, Close and Counsel.
Knowing that I only had to be excellent at Cross, Close and Counsel freed me to move everything that wasn’t integral to that pursuit into my emotional basement—just as I had moved my Diaper Genie into the basement of my house. It released me from the prison of trying to be excellent at everything by allowing me to be just good enough at the things on on my list that weren’t Essential Skills.
Cross is the cross-examination of a hostile witness during a Trial by a Litigator. Close is the delivery of a closing argument to a jury by a Litigator. Counsel is the provision of legal, ethical and practical advice to a CL through the course of Litigation. These are the Essential Skills that must be done with excellence for the Litigator to be Missional.
To be excellent at Cross and Close, a Litigator must be excellent at preparing for them, and that preparation begins long before the first witness is called. Likewise with Counseling. To be excellent, the Litigator must be focused upon its performance from the first moment of the Litigation process.
The purpose of Cross is twofold—first, to call into question hostile testimony on material facts in dispute; and second, to gather evidence to meet the burden of production. Cross is an Essential Skill because it is the heart and soul of the adversary confrontation. A lawyer who cannot Cross with excellence will not be able to produce the heat the jury needs to find the truth that the parties need to reach resolution of their dispute.
The purpose of the Close is for the Litigator to meet his client's burden of persuasion on those issues for which he has the burden of proof. And, for those issues for which the adverse party has the burden of proof, it is to persuade the jury that it has not been met. Close is an Essential Skill because it is provides the jury with the nexus between the facts and the law that it needs to render a just verdict. A lawyer who cannot Close with excellence is handing the jury a dull pencil—it might write, but not clearly.
The purpose of Counseling is to guide the client through the Litigation process. In this, the Litigator is like a nineteenth century frontier scout leading a family of pilgrims across the Appalachians to establish a homestead in the wild west. Because he has made the trip many times before, he knows where the rivers can be forded and the dark canyons where the Indians are most likely to hide in wait. He does everything he can to help his family make it through safely, knowing that (unlike him) they have never made the trip before and are likely to mistake the molehills for mountains and underestimate the full and real danger of some critters they need to avoid. Counseling is an Essential Skill because without it the client will never make it to the Close—he will give-up or trip-up long before that.
There are many tasks and events that occur during Litigation, but Cross, Close and Counsel are the only ones that cannot be delegated and must be performed with excellence if the Litigator is to be Missional
In addition to requiring excellence, the Essential Skills are non-delegable within a case team. A paralegal can review document production and a junior attorney can write a brief, but the Cross, Closing and Counseling have to be done by the senior Litigator himself. If he tries to pass on any one of them to someone else, he will find that he cannot perform the other two with excellence. They must be weaved together throughout the Litigation by the person who is ultimately responsible for the outcome of the case, and that is the senior.
A caveat is necessary here. I don’t mean to say that the senior must perform every aspect of the Cross, Close and Counsel by himself. He can, and should, get as much help as he needs from the case team to perform the Essential Skills with excellence. But the senior must determine for himself where the line between help and delegation is drawn.
For Cross, that might mean having the junior cross-examine minor witnesses while reserving the critical Crosses for himself. If he doesn’t do that, he will burn out and keep his junior from learning the skill for himself—which is counterproductive to Group Development. That means that the senior will Cross the witnesses whose testimony bears most directly on the issues of the case. That cannot be delegated.
Likewise on Close. The senior must be the last member of the case team from whom the jury hears. They have to see that he is the captain of the ship for them to believe he is charting the proper course for their deliberations.
The paralegal and junior should also assist the senior with Counseling, but they can never be primarily responsible for it. The temptation to over-delegate Counseling is the strongest with the clients who are most difficult for the senior to deal with, but it is the most difficult clients that require his attention the most.
There are many tasks and events that occur during Litigation, but Cross, Close and Counsel are the only ones that cannot be delegated and must be performed with excellence if the Litigator is to be Missional.