[Note on 28 Sep: I have realised the subject matter is far too ambitious and different senses of “good at her job” needs to be properly broken down. But, taking the words directly from Andrew Healey, “I like keeping old writing online to look back on so that’s why it’s still here, in its glorious wrongness”]

My unoriginal answer is that what makes a lawyer “good” is her ability to give the appearance of fairness to a set of facts: to tune up or down the shades of grey as the occasion requires.

I claim this answer has a number of mildly interesting implications for lawyers and non-lawyers alike.

1 What to measure?

Usually in Law, we use years of experience as a proxy for how “good” you are.

But what if we strip that away. Conceptually, what makes some lawyers better than others?

This is interesting to me because how good or bad lawyers are is not only almost impossible to quantify; it is hard to even agree on what it is.

I know very little about medicine: in fact, so little I probably don’t know what I don’t know. But I have quite a good idea what being healthy means. And it seems uncontroversial to say that a good doctor is someone who keeps you healthy.

For two GPs who have to see similar patients, the better doctor is one who (over time) somehow keeps (statistically comparable) patients more healthy.

But what about lawyers? Two prosecutors work in the same department: one wins more trials than the other. Is the winner the better lawyer? Or does she just choose the easier, possibly less morally culpable, cases to prosecute?

How about litigators in private practice? One law firm’s clients win much more often than others: is it because the firm is better, or because it is just more cautious, and chooses only the strongest cases before going ahead?

2 A mix of qualities?

Change tack slightly.

As mentioned “years of experience” is often used as a proxy of how good (and expensive) a lawyer is.

This makes general sense. For most things, the longer you do it, the better you get.

But, in order to be meaningful, the proxy has to track some real skill. Imagine (plausibly) two people with similar cognitive and social skills have trained in the same law firm in the same department and (implausibility) handled the exactly the same kind of cases and clients.

On one, nihilist, view, it logically follows that one is as experienced and therefore as good as the other. On this view, “years of experience” in a field isn’t even an estimate of some real ability: it is all that distinguishes one lawyer from another.

Most lawyers would not want to go down the nihilist route. In any case, it offends common sense. Some people just “get” more out of the same experience than others.

But in the legal context, what is it that some people “get” more out of?

Is it just a mix of personal and cognitive qualities? Like a doctor who manages to keep patients healthy by a mix of clever diagnosis and soothing bedside manner, encouraging them to live a better lifestyle? But we again we run to the same problem: a mix of qualities to further what end?

In private practice, “help client achieve their commerical goals” is a common phrase: so perhaps what makes a commercial lawyer better than others is whether she is better at helping client achieve their commerical goals.

But then, what, if anything is special about lawyers? Are they to be assessed by exactly the same criterion as (presumably) all other business advisors, e.g. management accountants, finance people, and IT staff? If yes, is the professional self-identity of lawyers as lawyers merely a historical accident?

And also what about lawyers in the public sector/diplomacy? Or judges? Leaving aside seniority and level of Court, can one judge theoretically be better than another, given there is no KPI to meet?

3 Darker or lighter shades of grey

My own answer proceeds on the following (possibly controversial) intuitions:

  • There is a meaningfully distinct “legal” profession: so that (say) a prosecutor, an international lawyer and a commercial transaction lawyer share something substantial in common, the major difference in terms of clients and goals.

  • Within a particular field, some lawyers are better than others. It is not just a matter of the title you occupy / whether your qualities are recognised: conceptually, a junior barrister of 3-5 years experience can be better than a King’s Counsel of decades of experience; a lower Court judge can be better than a Supreme Court judge.

  • A basic level of cognitive ability is required for a lawyer to deliver competent service, but law is a special skill that goes beyond general cognitive abilities such as facility with words, good memory etc. Conceptually, one lawyer can have higher IQ, memory etc. than another, but still be the poorer lawyer.

  • Similarly, while good lawyers are (generally) recognised, and will get better and better in their particular field with increased caseload, this is conceptually separate from how good/bad they are.

On the basis of these intuitions, I suggest a good lawyer is someone who is best able to persuade a Court to take as light or as serious view of the facts as required: presenting the facts in favour of one perspective as far as possible, but no further.

For court advocates, this is comparatively easy to demonstrate. Take 10 judges, 10 criminal defence counsel, and 10 hypothetical sets of facts. Use a suitable set-up so that each judge hears each mitigation from different counsel, with the identity of counsel appropriately masked.

The better counsel should be able to achieve a greater reduction of the sentence for their clients than others in a statistically meaningful way.

For lawyers outside the court room, a test may be less straightforward. There is no audience solely concerned with justice/fairness, i.e. the judge in a court setting. Any persuasion applied by the lawyer is likely a mix of appeals to fairness and general bargaining strategies.

But there are still conceivably situations where the more “pure” legal argument can be separated from the rest: e.g. when both parties are in broad agreement that one aim needs to be accomplished, and each side’s lawyers propose the terms to bring that into reality. Some terms are likely to come across as “fairer” than others, even if both are trying to reflecting the same commercial bargain.

3 Why does it matter?

For any busy, practical lawyer who has read so far, the obvious question is likely “who cares” (or, more politely, why does it matter)?

I suggest it matters because how a lawyer understands her own craft has a number of implications, e.g.

  • Practising law is more similar to research in arts and humanities, not sciences. Persuasion is not a skill that is particularly related to maths or experiments. Instead, given the facts in Law always involve people in one way or the other, the practice of law is much closer to history than, say, physics.

  • Like serious humanities scholarship, mastery of boring details is necessary. Reading about law should be fun, at least for people who enjoy following the news, reading popular history etc. But just like historians who need to visit archives, there are parts of law where one needs to get boring facts (of no intrinsic interest) absolutely right. A degree of boredom is inevitable for lawyers, even if not for their clients.

  • Legal arguments is a well-defined sub-category of political argument, where the ground rules are spelled out and agreed. In a very broad sense, every argument about how the community should do anything is a political argument. A legal argument is a very narrow sub-category of that (1) the ground rules are spelled out and agreed; (2) typically the dispute directly concerns only a few individuals, who are (usually) the only parties with standing to argue; and (3) the overarching consideration is that of fairness as opposed to aesthetics or commercial gain.

  • But ultimately, resolving a legal dispute is about making a value judgment: not just in the classic sense of arguments of law (i.e. debates about what the law is), but also in terms of fact, e.g. whether a certain course of action is reasonable or unreasonable in a specific context; or whether a certain account is believable or unbelievable a specific context.

  • Like politics, the practice of law is a cost centre in society. It brings peace and cohesion, but there can be too much of a good thing. Ideally, once the rules are agreed, people can get on with their lives and careers; good times can be enjoyed, and work translates to material progress that everybody enjoys.

  • Fighting a dispute in Court or recording a bargain in a contract are a distraction from production and entertainment. It is a drain on finite resources. It is likely inevitable in any large-scale society, but a necessary evil nonetheless for that. Claims that societal aims (e.g. human rights advancement) can or should be achieved through litigation must be considered with that cost in mind.

(The points below are work in progress.)

  • Legal communities arise out of the areas of business/government they serve; lawyers there are shaped, but never defined, by that social landscape.

  • Ditto for lawyers from a particular jurisdiction in comparison with their peers in other jurisdictions.

  • Given the fundamentally subjective nature of legal service, it is better to have a lawyer you trust than someone who is said to be “good” without context.