What This In-House Attorney Wants from Defense Counsel Prior to and During a Trial

FDCC Quarterly, Fall 2008 by Nota, Kenneth J

I.

INTRODUCTION

The title really says it all. The purpose of this article is to discuss briefly what I need and expect from my trial lawyers once it appears that a case must be tried. Although I cannot speak for all in-house attorneys, I can tell you based on conversations I have had over the years that what is important to me most likely will be important to them as well. I am sure that some parts of this article apply across the board; other parts may not. But my goal is to help you see your trial preparation work through your client's eyes, which may help you think about and approach that work in new ways.

II.

TRIAL LAWYER V. DEFENSE COUNSEL

"Wanted: A Good Trial Lawyer to Take My Case to Court Litigators Need Not Necessarily Apply"1

The first thing I need from my defense firm is the right trial lawyer to try my case. In the introduction, I purposely used the term "trial lawyer," as opposed to defense counsel or litigation counsel. In my seventeen years of managing litigation at Dryvit, I have come to appreciate the difference quite a bit. I certainly did not when I first joined the company in 1990. My private firm practice was in the corporate and commercial lending areas, not litigation. I initially assumed that all litigators handled all aspects of litigation, such as answering complaints, conducting discovery, drafting pre-trial motions and briefs, preparing for trial, and conducting trials and appeals. Over time, I have learned that while some litigators may in fact do everything, very few do everything well. While in medicine a general practitioner may be good, if I am having surgery, I want a surgeon, and if I am having brain surgery, I want a neurosurgeon. The same is true with lawyering. While a general practitioner may be good, if I have litigation, I want a litigator (usually a defense lawyer since my client is usually a defendant). But not every litigator is a good trial lawyer. If I have a trial, I want a trial lawyer, and I want a trial lawyer experienced in the subject matter relevant to my case. I do not want somebody who tries medical malpractice cases to try a construction defect case or a patent infringement case involving chemical formulations.

Real-life concerns can interfere with finding the right attorney for the job. When you are given or getting referrals, or when you have an existing client, maybe a client for whom you do real estate work, how forthright are you about your firm's expertise if suddenly that client has a huge litigation matter? Are you going to say, "Hey, you're a good client, but we really are not the best choice for you to handle this matter. Why don't you contact the XYZ firm? It specializes in this area." Or are you going to be afraid that if you refer the client to the XYZ firm, you may lose the client if the XYZ firm does a great job? Are you concerned about the fees you will lose? Will your ego be bruised? These are real life concerns and understandably so.

These concerns can arise even within a law firm. Partners or senior associates can get very possessive of a client and may be afraid to let somebody else work with that client. An attorney may also be too proud or arrogant to even realize his or her own limitations. I worked with an attorney who was absolutely brilliant when it came to pleading practice, motion practice, briefing, and appellate work, but he was not a good trial attorney at all; in fact, he was pretty bad. It had nothing to do with his competence, intellect, or preparation. It had more to do with how he presented himself, the evidence, and our witness to the jury. To be a good trial lawyer, you have to be a good storyteller. The same story told by different people can be very different. This lawyer just did not connect well or come across well to the jury.

So the first thing I need from my defense firm when a case has to be tried is the right attorney to try it. If you do not have the right lawyer for the job, you will force me to bring in somebody I trust from the outside. Neither you nor I will like that. You will not like having your firm be second chair, and I will not like having to pay two firms. The other option will be to force me to overpay on the settlement of the case to avoid the bad verdict that might result from having the wrong lawyer try the case. Again, you will not like the result, and neither will I. Your firm will never get another case from me, and I will have paid too much to settle. So the bottom line for your existing clients is to be honest regarding your abilities. And if that does not work, at least remember the rules of professional responsibility: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."2 You do neither me nor your firm any favors by suggesting that you have the ability to try my case if you do not.

III.

CONFIDENCE

"Take the time - non-billable time - to learn about your client and your client's business. Learn their history, their values, their culture, their goals, their accomplishments, and their expectations."3