Lawyers and Litigators: The Big Difference

There is a common assumption that all lawyers are litigators. No.

Most attorneys on TV are shown functioning AS litigators.  The truth is that lawyers have a law degree and can practice law, or they can have a law degree and not be sworn in, and not practice law. Any sworn in lawyer should be able to practice law in theory, however, that does not mean they are litigators necessarily.

Attorneys can perform research, draft legal memos, draft potential legislation, analyze regulations, be involved with intellectual property, assess damage control, function as a mediator, teacher, professor, and perform a lot of duties which are administrative in nature, overseeing groups comprised of legal researchers, pension adminstration, and task enforcement, reporting to higher ups in government, etc.

However, representing criminal defendants, and plaintiffs bringing suit against others, or  a respondent, etc, usually means being in court for law and motion, pre trial hearings, and general court appearances which cannot be done via “court call” telephonic hearings. As expected, many attorneys do not actually like law and motion hearings or court trials, or they may not want to litigate court trials. Most attorneys that practice in Federal Court are not familiar with State Court, and do not like State Court. State Courts can show great bias in certain jurisdictions, but most Federal Courts are tightly run, with little room for nonsense, and are formal. All argument is done standing at the podium. Baliffs are not in every courtroom.

When one appears in court for law and motion hearings, right away one can tell which are the litigators, and which are the ones just there because they get paid.  Of course some litigators are there because they got paid, but the true litigators like to actually put on the case where possible, and that often involves what we call story telling.  And yes, there is some element of salesmanship since you cannot tell a story without raising some emotion. Very dry subjects involving things like SEC regulations, mortgage packaging technicals, or software details and intricate delineations of certain proprietary issues do not have much appeal to most people, so attorneys if picking jurors, will have to focus on people who are logic based and in jobs which are not helping professions (counseling, teaching) but would try for engineer, IRS compliance types, for example.

Most people think that cases must be won on the “law.” In trials, the “law” is only later explained by the judge, and jury instructions spell out WHAT the jury needs or doesn’t need to make the decision.  This is given to the jury only  after all the stories and facts (credible or not) have been told. Therefore whatever “law” the Judge gives, the jury takes the evidence (facts) and tries to figure out whether the “law” does or does not fit.

Understanding that juries are  human beings, the story that juries hear will enable them to look for facts. Also  it is common knowledge that approximately 70% of juries are assuming that defendant in a criminal case is guilty simply because he/she IS THE defendant.  IF a jury likes your story, or sort of likes the attorney or client, they will automatically look for facts to support your story.  IF a jury doesn’t like your story, they will do the opposite.  So it’s obvious that the jury must like either your story or your client or attorney or a combination.  In the opposite situation, you will be losing the case. Overwhelming facts in one’s favor usually means you are going to win, even with a jury that doesn’t care.  Cases with “jury appeal” are ones that you see on TV, and those are not necessarily at the Supreme Court, but on TV shows.

It should be noted however, that litigators trying to persuade judges do not necessarily try to sway judges with overt emotion only since that would tend to insult judges; as AR activists are blinded by passion, judges not necessarily so….

Look at ARs methods.  They find cases where most will not like the story, and not like the people. THEN the ARs can monetize on the fact that  no one likes the story or the people, thus they can generate “hating” of the people and what happened. Then that raises awareness that it’s ok to “hate” that type of thing and the people that do anything “like that.”  This translates to finding alleged dead animals on any property, alleged abused animals, alleged too many animals, alleged wrong type of housing, alleged not enough food, wrong food, wrong crate, wrong selling and display.

Understanding that the “story” is far more important than knowing every single fact, HSUS is able to spin deceptive facts into some bull which can then raise a new law harming owners and animals.  It’s obviously working.

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