Can judgment even be taught? It thrives on its own flexibility and resourcefulness in the face of ever-changing circumstances. It therefore cannot be a matter of hard-and-fast rules. What is there to teach? But neither does experience seem enough. Many seasoned litigators seem rather clueless. They never learn to make good judgments. There is the old joke about the lawyer who tells a client she should hire him because of his good judgment, and when the client asks the source of his good judgment, he responds: “years of experience making bad judgments.”

So does one have to be born with it—a talent for practical decision making? Some lawyers, no matter how intelligent, seem never to make progress or even to retrogress. But if it is not teachable, or learned by experience, or simply a matter of native ability, where does it come from? And how do you know when you have it?

The matter is not hopeless. The truth is, of course, that judgment requires all three at once: talent, experience, and natural gifts. And if it cannot be taught, it still seems something that can be learned. It develops slowly, with constant thinking and experimentation. It is the right kind of perspective, not a set of principles but an attitude. It is what the great philosopher Aristotle called a hexis, not so much a habit (as it is often translated) but a “way of doing.” It is a way of conducting one’s business, as much style as substance, but then substance too. It surrounds and infiltrates a litigator’s whole being. Part of learning judgment is learning that there is no formula and no principles that govern it. A good litigator’s habits must be acquired but never become entrenched, always being open to question, to being re-learned and reconsidered. Part of good judgment is the constant recognition that no one’s judgment is ever good enough. There are always mistakes, and it can always be improved.

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