Pre-Veep debate comments: Will Edwards' show an ability to think on his feet?

Steve Sturm of Thoughtsonline takes issue in part with Captain Ed on the likelihood that John Edwards will be well-served tonight in his debate with Vice President Cheney because of Edwards' demonstrated ability as a trial lawyer to "think on his feet." Steve argues that as a "buyer of legal talent" (that is, a client), he's observed that there aren't that many "Perry Mason moments," and that Edwards' success doesn't necessarily indicate a talent for thinking and reacting spontaneously.

I can't disagree with Steve, of course, about the importance of thorough preparation, factual and legal research, and familiarity based on similar past cases. Those things are all obviously important advantages. Usually a lawyer who combines these qualities will offer competent and steady representation.

Still, the practice of law — and perhaps especially trial law — is an art rather than a science. The dull and plodding lawyer with the above-listed qualities will lose more than his fair share of cases to the nimble and creative lawyer who also has them. Modern pretrial discovery does considerably reduce surprises at trial; and yes, it perhaps has as a side effect a substantial reduction in the importance of nimbleness and creativity as compared to methodical preparation. But even during the pretrial discovery phrase, and certainly at trial, there are always opportunities for creativity to display themselves.

A "fer instance": Recently I was brought into a very nasty divorce case (far outside my regular specialty) for the specific purpose of impressing on our client's opponent that our client was deadly serious about going to trial, had nothing left to lose in a trial, and was prepared to be humiliated if that meant the spouse's humiliation as well. I gave what was, in effect, an opening statement at the second mediation of the case, and I was about fifteen minuets into my monologue when my opposing counsel and his client literally fled from the conference room in panic. It took the mediator's best efforts to persuade them to stay and face up to what had become an extremely uncomfortable reality; and the case ended up settling on fabulous terms for my client. So in that particular (and, I'll grant, somewhat unusual) situation, native talent for strong advocacy was decisive.

I'm far from persuaded, however, that an ability to "think on one's feet" as a courtroom (or even pretrial discovery) advocate necessarily translates into political skill, especially in a debate-type setting. It's a different sort of dance, and someone who does an inspired tango in the courtroom may or may not win the waltz competition. To thoroughly mix my metaphors: Just because Cheney isn't a lawyer doesn't mean that he hasn't done his fair share of swimming amongst the sharks, and biting harder than he's been bitten. His dry and understated style works well for him — it's entirely natural, and that's something both jurors and, I think, voters are pretty good at sniffing out.