No matter what your political persuasion or how you feel about the decision, the Supreme Court’s decision today upholding the Affordable Care Act against various constitutional challenges can teach clients some valuable lessons about selecting counsel and litigating cases:
1. Successful Litigation Requires More Than a Silver-Tongued Devil. Based largely on stereotypes driven by the media and popular culture, many people erroneously assume that the best-dressed, best-spoken, best-looking lawyer will always win the case. That simply is not true. In our experience, the most successful lawyers are those that are the most well-rounded. To be sure, the ability to effectively make an oral argument may be important in a given case. But equally, if not more important, is the ability to develop a successful strategy, the ability, willingness and commitment to work hard and put in as many hours as it takes to get to a successful result, and the ability to generate an absolutely top-notch written work product.
2. Experience Counts. To successfully accomplish their legal goals, the client MUST hire a lawyer that has the experience to identify and understand the legal and practical issues involved in a particular legal matter and the experience to then formulate and implement a strategy to successfully address such issues. Such experience is not only or necessarily a function of age alone. On the contrary, such experience can only be gained by having “fought the battles” so to speak. To increase the chances of a successful result, the client must hire an attorney who has successfully litigated multiple cases in the subject matter and court where the client’s particular matter is or will be pending. The client’s legal matter simply is too important to hire a lawyer who will learn and gain experience on the client’s dime – hire a lawyer who already knows what he or she is doing, and has a track record of successful results.
3. It’s Never Over Until It’s Over. The history of the Supreme Court litigation of the challenges to the Affordable Care Act well illustrate the above points and caution the client to understand that a case is never over until the final decision is rendered. For those that followed the case, you will remember that the performance of the Government attorney at oral argument was routinely panned and criticized and the commentators alomsot all opined that the Affordable Care Act would be invalidated. But as they say, the reports of the demise of the ACA were greatly exaggerated. The critics did not realize the work that the Government attorney did behind the scenes and outside the courtroom to guide the case to a successful result. The Government attorney and his team obviously had the experience to formulate a strategy that ultimately was a winning strategy and he and his team had the tenacity and skill to generate a high-quality written work product and successfully implement his strategy. That’s what it takes to win.
Individuals and businesses looking to hire an attorney for a litigation matter should well heed these lessons.