Thoughts on the Personality Traits of Commercial Disputes Lawyers
My older son will turn seventeen in a few days, and starting to seriously look at his long-term professional future, he recently asked me what traits a commercial disputes lawyer has and how it is to be such a lawyer. I tried to give him an off the cuff answer, and we discussed his query a bit. Thereafter, I continued to think about this topic that might, I could imagine, also be of interest to law students or young lawyers at the beginning of their career. Hence, I took the time to put down in writing my thoughts on my son’s aforementioned question that is actually not that easy to answer.
Prior to setting forth my thoughts herein, I would like to stress that the selection and description of the personality traits below are necessarily subjective. They are primarily based on my twenty years of practical experience, which has mainly taken place in Zurich, Switzerland, in the context of commercial disputes. My impressions and conclusions can therefore not claim general validity, applying to any and all jurisdictions or to any and all commercial disputes lawyers practicing in Switzerland. On the other hand, a lot of my thoughts below do, of course, also apply to other lawyers, such as criminal defense or M&A lawyers (and to other, not legal professionals, for that matter), and not only to commercial disputes lawyers. But I will address my remarks to the latter category of lawyers, since I know them best because of my personal practical experience. Finally, it would also be presumptuous to consider my subsequent thoughts as being conclusive. There may be other relevant character traits not covered below. All this said, I hope that my following remarks are nevertheless interesting, as I said, mainly for law students or young lawyers.
As a commercial disputes lawyer, you should have some intelligence. You will have to memorize a lot, such as the existence and scope of statutes. You will have to analyze and structure an important amount of information, every time that you, for example, have to familiarize yourself with the facts of a new case. For all these tasks, a certain level of intelligence is required. However, as mentioned, it is only a certain level of intelligence that is required, no particularly high intelligence. Law is not the same as mathematics or physics, for example. In the latter two areas, a very high level of intelligence is required to get to certain levels of abstraction. If one, like me, does not possess the necessary intelligence, one will never be able to understand certain connections, phenomena, interdependencies, etc., in mathematics or physics. There are no corresponding degrees of abstraction in jurisprudence. This is obvious, because the law should and must be understood by the legal entities to whom it is addressed. It is easy to understand the principal basis of legal reasoning and the fundamental working instrument of continental European lawyers, i.e., the legal syllogism or the syllogistic subsumption of facts under the law. In other words, the application of generally-abstract legal norms to specific circumstances of a particular case in order to deduce legal conclusions. As soon as this principle is understood, one has the instrument to understand the thinking of continental European lawyers. There are no more abstract and difficult to understand rules of logical thinking in jurisprudence. In summary, it is helpful if you have a good memory and you can quickly and easily grasp information, correlations, dependencies, etc., as a commercial disputes lawyer, but you do not need a particularly high level of intelligence that you need to have, for example, as a mathematician or nuclear physicist.
Speaking of intelligence, what you do need as a commercial disputes lawyer is emotional intelligence, which in the present context I understand as a general term for high sensitivity in social situations. This is evident in various ways. For example, you cannot be a lawyer if you cannot interact with other people, not only with clients, but also with various other people, such as members of the authorities. The outstandingly intelligent, but extremely introverted person will hardly become a lawyer, at least not a successful one. Especially in a small country like Switzerland, lawyers working in the economic centers such as Geneva and Zurich also regularly have foreign clients from very different cultures. As a lawyer working in Switzerland, one must therefore be able to adapt oneself to people from very different backgrounds in order to be able to communicate and work together with such diverse people. Also, as a commercial disputes lawyer, one should have a good psychological instinct for other people, especially for their non-verbal communication. One should be able to, for example, detect with a relatively high degree of reliability how credible the statements of a client or an informant are. Related thereto is the circumstance that it is also very important to have a good bullshit detector as a commercial disputes lawyer, that is to say a good feeling for the motives, intentions, etc., of other people. Over and over again in your career you will, for example, be contacted by potential clients who have dubious requests or proposals. In most cases, this can only be ascertained once you communicate with such persons, and when you enter into a dialogue with someone, you always expose yourself to the risk of abuse. Therefore, it is important to have a good instinct as a lawyer for whether – in light of all the circumstances of a specific situation – someone is serious and trustworthy or not, whether the explanations given are plausible or not, etc.
As mentioned further above, as a commercial disputes lawyer, you do not need to have a particularly high level of intelligence. What you need to have, however, is stamina with regard to your education and professional training, because these are not only long, but will actually never stop. Irrespective of how brilliant one is, as a lawyer one has to learn a lot, and I mean, really a lot. In law, there is no such thing as a Newton apple tree. In other words, irrespective of the intellectual brilliance of a person, all the things that a lawyer has to learn will not come to him or her by a creative insight into existing rules of mathematics, physics, or the universe, but only by spending countless hours in lecture halls and (mainly) libraries. To obtain the permission to study law at a university, you first have to spend around twelve years at school. Thereafter, you will need to study for, in Switzerland, a duration of at least four years to obtain a master of law degree. Following that, in Zurich, you will have to spend at least one full year as a trainee in a law firm and/or as a clerk at a court, and it is only after this practical experience that you will be authorized to take the bar exam which, under normal circumstances, requires many months of very intensive studying. Once you did all that and are admitted to the bar, your professional training actually only begins, since only then will you be given more responsibility and more demanding tasks. And then the learning and training does not end during the entire professional life, among other things because the law is not something static, but adapts itself permanently (and nowadays ever faster) to new circumstances. Stamina is also required for handling legal cases. Some cases involve very large amounts of data through which one has to laboriously work through. And then, as a commercial disputes lawyer, you often have to write long legal submissions that take days or even weeks to work on. All this requires less intelligence than the ability to persistently pursue long-term goals.
Reading and writing
Speaking of writing legal submissions, it is to be pointed out that in Switzerland commercial disputes lawyers write much more than they orally plead cases. The image of the American trial lawyer, who presents a case in a rhetorically brilliant manner to a jury, has nothing to do with the practice of commercial courts in Switzerland. At Swiss commercial courts, the proceedings are as a general rule predominantly conducted in writing, so that the life of a commercial litigator practicing in Switzerland consists primarily of studying files and drafting submissions. For this reason, it is essential that as a Swiss commercial disputes lawyer you enjoy writing. Someone who does not like to read and write will, in Switzerland, not be happy in this profession.
In a functioning constitutional state such as Switzerland, the enforcement of private rights and claims requires the application of laws in court proceedings. In such proceedings, the law is, in the sense of Rudolf von Jhering’s famous book, disputed and fought for, and as a commercial disputes lawyer one must take pleasure in such contradictory proceedings. You must take pleasure in the circumstance that there is a counterparty that tries to present the case in a favorable light with arguments that are as convincing as possible. And which tries to find mistakes and weaknesses in your presentation of the facts and the law, which tries to discredit your client’s credibility, etc. Confronting this contradictory constellation certainly requires a certain fighting spirit and a certain aggressiveness, which is also evident in the practice of certain sports, such as hockey, soccer or handball. Someone who, as a child, found ski races or soccer matches uninteresting or even repulsive, because he or she had no interest in or even disliked competition with other children, might have certain basic personality traits that make it difficult for him or her to enjoy, as an adult, the contradictory nature of commercial disputes. Do not get me wrong, when I refer to a competitive nature and to a certain aggressiveness, I am not referring to a person who wants to win always and everywhere, even playing ping-pong or monopoly with his or her children, or who practices mixed martial arts in his or her free time. Everything is relative, also in the present context. I am not talking about extreme character traits, but only about more or less strong tendencies that I have observed in the years of my practice.
Speaking of contradictory proceedings, another trait that I think is needed as a commercial disputes lawyer is a certain backbone, in other words, the ability to cope with rivalry, sometimes even hostility, and setbacks. As far as setbacks are concerned, it must be clear that you will experience them again and again as a commercial disputes lawyer. In the Suits series, Harvey Specter always wins, but this is, of course, not a realistic rate of success, but a dramaturgical exaggeration. In reality, there is no commercial disputes lawyer who wins all the cases. So, sooner or later, as a commercial disputes lawyer, one will be confronted with the situation that one loses a case, which one has actually assessed quite differently. Or your services are terminated in an interesting mandate because the client has divergent ideas about the management of the case. You need to be able to deal with such setbacks, otherwise you will not be a commercial disputes lawyer for long. Regarding rivalry and sometimes even hostility, this also accompanies a commercial disputes lawyer, namely in the form of counterparties who are not happy about the commitment shown and make you feel it.
In my experience, commercial dispute lawyers usually have rather a strong ego. In an episode of the Suits series, Harvey Specter states that all lawyers have an ego issue. Well, this is an exaggeration, of course. But due to the character traits discussed above, litigation lawyers usually have quite a strong ego. As mentioned, everything is relative, so I am not talking about the ego of, for example, high-ranking politicians. But still, a commercial disputes lawyer has to be able to handle it that he or she is suspiciously eyed, rejected or even treated openly hostile by counterparties, that he or she sometimes faces pushback from the court in a hearing, or that, to give another example, his or her opinion is criticized by another lawyer in a scientific article. You have to be able to deal with such situations, and for this, a healthy ego is needed.
Unlike in the USA, where some class action trial lawyers earn massive amounts of money, in Switzerland, you do not really get rich as commercial disputes lawyer. This does not mean that you cannot earn well as a Swiss commercial disputes lawyer. But you do not become really rich in the sense of a successful entrepreneur, sports star or actor. It is usually also more likely, in Switzerland, to make a lot of money as a high-paid employee in certain other industries, such as the financial industry or commodities trading, than in the legal profession. Money should therefore not be the primary motivation for a Swiss commercial disputes lawyer, because if it is, one will be disappointed at some point. But in my opinion, one is richly compensated for this in other respects, namely through a constantly varied, exciting and satisfying activity.
The above thoughts beg the question of how much, if at all, certain of the above-mentioned character traits can be trained. Unfortunately, I cannot really answer this question because I do not have the necessary expertise in this field. My personal view tends to be that one can develop certain traits of character at least to a certain extent, but that a certain basic character of a person is present from the very beginning and cannot be fundamentally changed. In the present context, however, this is not a problem, since the range of possible forms of work for lawyers is, fortunately, very broad. In this way, suitable forms of activity can be found for all personal preferences.
This article has first been published on LinkedIn on 9 March 2018.
PHH, Zurich, Switzerland, 14 March 2018 (www.haberbeck.ch)
Rechtsgebiete: Allgemeines Vertragsrecht