Who is the most successful trial lawyer

ZAP No. 12, 2012, compartment 23, p. 941

Enjoy the legal profession?
From Prof. Dr. Ekkehart Reinelt, lawyer at the BGH, Karlsruhe

About 80% of the graduates of the 2nd state law examination become lawyers, in most cases not because of inclination, but because of them needas the legal profession is the only typical legal profession that has no further entry requirements or restrictions. When you approach the end of your professional life, you often look back with the question, did I make the right decision - also with regard to the job?

I. Career choice and start of career
I passed the 2nd state examination in law in 1971. At that time there were around 20,000 lawyers in the whole of Germany, as many as today belong to the Bar Association of Munich and Upper Bavaria. The doors to all conceivable legal professions were open. Why did I become a lawyer? I didn't want to be a legal bureaucrat. That's why the notary's office was out of the question for me. Ministry of Justice or business enterprise? I hated the idea of ​​being in hierarchies. Maybe judge? I had similar concerns then. Independence and freedom cannot be easily achieved in all cases, even for judges. For many years you are subject to the judgment of your superiors. If you do not act as a single judge at the local court, for example, there are peer pressure. And if you think you've discovered in yourself the ability to work particularly quickly and quickly, why shouldn't you use this quality to your own advantage in the professional world?

Everyone, including every lawyer, has priorities when making value decisions. It seemed particularly important to me to be able to live independently and freely and pursue my job as soon as possible. I also had an idealistic, albeit vague, idea that, as with RUDOLF VON IHERING at the end of the century before last, it could be about the “fight for justice”, but also about “justice”. So I became a lawyer. In the first six months of my professional life, my dream seemed to turn out to be an illusion: I ended up in a large Munich law firm that was dominated by the senior like an absolutist principality, following the principle of a well-known Munich public lawyer who told me - in broad Swabian - explained: "You can only run a law firm with oppression and intrigue." On Sunday mornings called into the senior's office for the obligatory veal sausage breakfast, the colleagues tried to demonstrate casual sovereignty by wearing silk scarves in their open shirt collars instead of the usual ties. They eagerly listened to the senior's success stories and dutifully laughed at his repetitive jokes. I finished the unpleasant interlude during my probationary period in the middle of 1972. Since then I have been working independently. I think it is a mistake to try to control lawyers and keep them small. They are only really good and competent representatives of the client if they can work independently. You need to be immediate Contact with the client as a litigation attorney you have to go to the front yourself and the person who only works internally will only develop into the kind of personality you want as a lawyer in exceptional cases. It is no wonder that law firms that generally do not make partnership offers constantly have to look for new young lawyers. Because anyone who is a lawyer with body and soul cannot be kept in the back room for long. I have often had the experience that highly qualified lawyers from large law firms have applied to our law firm because they have been denied direct contact with clients and denied their own responsibility. Interesting perspectives can open up for the young lawyer during the job interview, e. B. when the applicant asks how many lawyers in the firm actually partner are. The higher the number of partners in relation to the total number of lawyers, the greater the chance that independent work is not only permitted but desired and that one also has the chance to grow into the partnership from dependent employment relationships.

II. Enjoy the legal profession
What is actually doing Enjoyment of the lawyer professions? Isn't it mostly hard work, sometimes even the struggle for economic survival? The lawyer’s joys and sorrows: there are both. For centuries, a rather derogatory image of the lawyer was painted. ABRAHAM A SANCTA CLARA, commonly known as JOHANN ULRICH MEGERLE from Kreenheinstetten, Augustiner-Barfüßer Preacher (1644 - 1709), commented on the lawyers as follows:

“They twist crooked things and crooked stories back and forth until it looks as if they are straight; the darkest things, the most obscure affairs, turn into light-filled events in their hands, and they make this crystal clear to the world. Some are like a car that always wants to be lubricated, some are like a cradle that quickly sways back and forth. Quite a few are like a lynx, they only look at money and gifts ”(RAISER ZRP 2001, 422).

In view of this image of the lawyer jumping back and forth at will from one position to the other (but our "real comfort is" - according to GOETHES Pandora - "partiality"), it is actually surprising that the lawyer in the opinion institute in Allensbach The professional prestige scale created is still relatively high up, albeit far behind the firefighter and the doctor. On January 1, 2012, over 158,000 lawyers were admitted to the German bar. The influx continues, as does the considerable pressure on sales (HUFF, LTO Legal Tribune ONLINE of March 29, 2012). The proportion of women is just under 33% with an upward trend. My last lecture was attended by ¾ female students, only ¼ by female students. The sales volume of the entire legal profession is around € 19 billion net, with 40% being generated by a few large law firms among around 45,000 law firms. The average turnover of a lawyer is around € 100,000 per year with an expense ratio of around 50%. Lawyers - according to HUFF - still have to look very carefully at how they earn their money. With an eight-hour day and free weekends it is usually not enough. Nevertheless, the profession still offers economically interesting prospects for committed lawyers.

Sometimes we envy the judges: they have the final say and the decisive decision. But: You only see a small part of the abundance of events that you have to judge. The Advantage of the lawyer: He experiences and experiences the full range of events and accompanies - not always, but often - the life facts that are subject to his legal assessment from the beginning to the decision and enforcement of the law at the end. The cases are as diverse as life. Even decades later, one is confronted with life issues that are surprisingly new and always exciting. That keeps you alive and makes the legal profession a joy.

III. Criteria for the attorney's success
It goes without saying: He must bring or acquire the skills and necessary knowledge that are required for legal processing. This includes not only material and legal knowledge, but above all knowledge and experience in the field of Procedural law. The training at the university and in the legal clerkship can only convey the basics. Especially in the area of ​​procedural law, the young lawyer will only acquire the necessary skills over time in practice acquire. The technical aspect includes mastering the everyday legal business. The attorney needs to know how to draft briefs, how to formulate appeals, how a cost-fixing process works. He must be confident in drafting a lawsuit, a statement of defense, an appeal, an appeal or a statement of reasons for an appeal. This is also important Clarity of style. I recommend formulating short, clear main clauses so that the reader (judge) does not have to wait breathlessly for pages to see whether and which verb will finally come (or not).

This is a crucial criterion for the success of a lawyer Pace of work. The lawyer must quickly grasp the facts presented by the client, structure them from a legal point of view and then act quickly (either in the direction of a negotiation or in the direction of a judicial dispute). Of course, speed must not be at the expense of care. That already dictates the avoidance of the enormous Liability risksto which the lawyers - not least because of the overly strict, almost strict liability approximated - liability jurisprudence are exposed. As is well known, the lawyer is faced with an abundance of almost incalculable duties of care when avoiding liability. There used to be a case law that said: The advice of a lawyer cannot be culpably wrong if it is in accordance with a decision made by a collegial court. This principle has long been abandoned. Legal errors of a lawyer or careless determination of facts are almost always based on his fault, from which he cannot exculpate. The lawyer's liability for Mistake of the court. The enormous care postulates make it necessary for the lawyer to work quickly on the one hand, and to work with the greatest accuracy on the other. This leads to a considerable temporal, possibly even health and psychological burden, which one can only cope with with a healthy disposition. Crucial for the acceptance of the legal work and its success is: Within a short period of time, not only the possible, but the optimal must be done and conveyed to the client. This also means that you should never exhaust deadlines to the end. The client must also be served quickly and reliably. If he has questions over the phone that cannot be answered immediately, he rightly expects quick feedback at short notice. I experienced it myself at the beginning of my professional career: exposed to telephone questions from the client, one does not dare to refuse an answer to a question and to refer to a callback. You may also give incorrect answers in order not to have to reveal that you just don't know the answer with certainty. In this case, however, it is the lawyer's responsibility to clarify the question immediately after the telephone call and, if necessary, to correct a possible error in the telephone statement by calling back immediately. Any other type of behavior has a lasting negative impact - such as long waiting times for clients before a meeting - the acceptance of legal services. The professional profile of the legal activity can be very different, if you compare the advisory lawyer of a large law firm with the lone warrior in court. For both, however, it is important that you have the ability to adapt to new situations immediately and then to make quick decisions. An important skill is the rapid conversion of knowledge into action. The typical skeptical is better off in other professions.

Note:
And something else: Anyone who only reads the Palandt in their free time (I know such explanations from job interviews) or who, when looking at the sun setting in the sea from the bow of a ship, cannot think of anything other than the completely irony-free sentence of a former scientific assistant: " The law of the sea also has its problems ”, so if you know nothing but law and yourself as Professional idiot profiled, is usually not in good hands in the legal profession.

More suitable for the legal profession is someone who can look at himself and his position from the outside and thinks outside the box. He has an advantage over those who have tried to memorize all the cases from the scripts of revision courses in order to then discover in the examination and later in practice that there are cases with which he has never dealt with . The lawyer must be flexible and able to adapt to new things and to get involved, to grasp the legal structure of new issues quickly and - be it in the consultation or in the process - to make the necessary decisions quickly and confidently or to advise the client. Only a mentally stable personality can cope with the pressure of the legal profession. The fact that many lawyers fail because of these challenges is already evident from the fact that a large proportion of young professionals return their admission to the bar after a short period of time. Maybe they don't know what to expect in the legal profession, maybe the pressure was too great. On the homepage of the Federal Court of Justice, you can read decisions almost every day that deal with the fact that lawyers are fighting in vain to regain a revoked license, be it due to financial loss, non-maintained liability insurance or health - mostly psychological - problems. Anyone who dares to become a lawyer must therefore be gifted with stable physical and mental health.

Legal work also has psychological aspects: What a lawyer does, he has to sell in the best possible way. This is what makes up the success of the legal work to a very large extent. There are lawyers who sell great without knowing anything. There are lawyers who know a lot but cannot sell themselves. Both are evil. The former is of course even worse for the client. It is important for the attorney to learn and constantly improve how he deals with clients, how he deals with judges, and how he treats the opponent. That doesn't mean he has to be a master of mediation. But he should develop a psychological sensitivity for dealing with those involved.

After all, legal practice also has one commercial side. The lawyer is not a selfless delight and provider of the client, but wants to make a living from his professional activity. He does not (apparently) altruistically serve the state like a ministerial official or judge, but wants to earn money. Its success is reflected in sales or profits. That means: He has to structure and manage the law firm in such a way that it works as economically as possible. He must not forget that acquisition is an essential part of legal work. The skills to do this are of course very different. The possibility of lawyers to advertise their activities (§ 43b BRAO, § 6 BORA) has been in effect in the last few decades since the Bastille decisions of the BVerfG of July 14, 1987 and since the professional code of conduct came into force on March 11, 1997 has been made much easier. Compared to the previous strict professional standards, there is a broad field for this. Nevertheless, the recommendation remains (Word of mouth) the most successful way of acquiring clients.

There is also one for legal work ethical side? The ethics of the lawyer has become a modern topic again today. The legal self-image of the independent profession as the guardian of overriding public interest has shifted to a profit-oriented service provider. The enormous increase in the number of lawyers (even if the curve has flattened a bit in the past few years) leads to a considerably more intense competitive situation and thus to a much rougher tone among the lawyers. This occasionally leads to a neglect of professional obligations.

In order to counter the increasing moral decline, part of the legal profession advocates their own Code of Ethics (For the discussion of the question, compare GROSS instead of many, Festschrift for WELLENSIEK on his 80th birthday, p. 889 - "Ethics of the law or ethics of opinions - Do lawyers need basic ethical rules?"). It is about the question of whether the lawyer must be committed to an ethos or whether one can rely on the fact that the corresponding virtue will remain valid, despite all the commercialization of the legal profession, even without codification. I do not believe that the establishment of ethical rules is of decisive importance for the level of legal practice. In the discussion, however, it seems important that the legal profession deal more openly with the issue of ethics and recognize its importance for the future of the legal profession. The lawyer who lives in harmony with himself has - even without setting down a code - certain principles to which he stands. That includes Ability to distance yourself towards the client if ethical or even criminal limits are reached. The lawyer must be careful not to participate in litigation fraud of the client or must try to prevent it.He is obliged to present truthfully and to advise the client accordingly.

At the beginning of your professional life, as a lawyer, you tend to let judges often push you into a certain corner. I have seen experienced judges compelling young lawyers to withdraw their complaints, to acknowledge or to make completely pointless comparisons. The pressure to make a comparison that judges often exert becomes particularly absurd when threatening with the immense costs that arise in the event of further litigation, especially when legal protection insurance is involved and the client is therefore completely indifferent to the threat. The young lawyer can only be advised not to undertake any irreversible procedural acts (such as withdrawal of a lawsuit, acknowledgment, waiver, irrevocable settlement) without the consent of the client and to conclude a possible settlement only in a revocable manner in order to clarify details with the party, if necessary the legal protection insurance or to clarify with experienced colleagues. Over time, the young lawyer will develop a sure instinct for the type of presentation of the lecture - be it in the brief or in the oral hearing - with which judge to achieve success. For example, in the case of judges who see their judicial independence best realized on the golf or tennis court, it is advisable to build up the client's position in such a way that the judge is offered easy access to quick and easy settlement of the legal dispute (e.g. Statute of limitations). However: the lawyer has to safest way walk. This also means: every conceivable means of attack or defense must be carried out. The factual presentation of the defendant's representative must therefore not be limited to a line of defense. In the event that the first path is not followed, it is advisable to set up an obstacle course with numerous hurdles, which makes it clear to the judge that - if he does not follow the first suggested alternative - he will have to refrain from playing golf or tennis for a long time . In the case of judges who think clearly and dogmatically - there are indeed such things, fortunately they are the rule at the BGH - it is advisable to structure briefs clearly and strictly logically (otherwise - although unfortunately not very widespread - no disadvantage anyway). If, on the other hand, the judge has a more humane or pastoral attitude, then it is right to let him chat in detail and to praise his efforts to find an amicable, peaceful solution to the dispute. After all, there are judges who also dismiss young lawyers from above. The less sovereign a judge personality is, the more he must withdraw to the authority of the office. Such judges also shy away from talking on the phone with party representatives and then - wrongly - often fear exposing themselves to fear of bias. As for the bias of judges: Since the rejection according to § 42 ZPO is almost never successful in practice (a crow does not poke the other's eye), one also has to come to terms with judges who are or are considered biased refused in vain. However, it seems to me essential in all cases to oppose attempts at domination by judges, to remain clear and tough on the matter and to express one's opinion clearly. Only then can you find an adequate negotiating mode with judges in the long run.

After an oral hearing, you should definitely - also for your own security - even if the client was present at the appointment Appointment report written summarizing the main content of the negotiation. Sending the logs often takes an extraordinarily long time. Sometimes the logs contain inaccuracies. It also happens that in later, other disputes, the submission of declarations during the appointment can be important. In such cases, too, it is helpful to dictate an appointment report immediately after the negotiation. The same also applies to the content of important telephone conversations with clients, opponents or judges, which are expediently recorded in appropriate memos. Some - often very competent - judges have the habit of calling the two parties separately before the appointment and pointing out one or the other that may still need to be presented or taught. Even if this practice is criticized by some colleagues, it still leads i. d. Usually to a proper preparation of the procedure. Judges in particular who fight for pragmatic and sensible solutions prefer such a procedure, which is not provided for in the civil procedure code. In this way, processes are brought forward quickly and quickly. Unfortunately, practice teaches that in many cases procedures drag on from appointment to appointment over the years. It seems to me to be questionable whether the new legal regulation to protect against lengthy proceedings can remedy this. Be in law school Obtaining and securing factual statements hardly taught. The facts are predefined for each exercise. As far as the facts of the case are concerned, the only problem can be to grasp them correctly and in any case to be careful not to change them during the legal processing (squeezing off the facts).

Note:
In the professional practice of the lawyer, on the other hand, is the elaboration of theessential facts first of all in focus. The lawyer must express the facts in clear statements and provide evidence in an appropriate manner.

IV. Conclusion
Once you have acquired the tools of the trade and found the right way to deal with clients, colleagues and judges, the legal profession can be a lot of fun, especially if you practice it not only on the superficial legal, but also on a metajuristic level with an eye for the background. Only this look beyond the everyday legal issues makes it possible to understand law as a difficult and highly interesting strategic game. It is precisely at this level that the legal profession can be a lot of fun. And even if - as the lawyer and writer HERBERT ROSENDORFER first noted in "BALLMANNS Suffering or Textbook for Bankruptcy Law" - the term "justice" does not appear in Schönfelder, the legal profession always offers the opportunity to at least try In pursuing the interests of the client, perhaps getting a little closer to the goal of "justice".

Have I chosen the right law profession? I can answer the question unreservedly in the affirmative. Apart from the first six months at the major Munich law firm, which I quickly forgot, I haven't regretted being a lawyer for a single day. Enjoyment of the job: I had it in many years of working as an instance attorney and still have it in my current work as a lawyer at the BGH, which offers the opportunity to transition more strongly to the vita contemplativa compared to the previous vita activa. This means a changed type of activity for the legal professional life, which - similar to that in the student days - corresponds more to what we have become accustomed to refer to as scientific work in jurisprudence. To be able to practice the legal profession in this way with - currently - 37 colleagues is once again a very special pleasure at the end of a legal professional life.