Lots of lawyers can “litigate” a case, which basically means 1) investigating and filing a lawsuit, 2) engaging in discovery before trial, and 3) dealing with the myriad of motions that arise during the course of a case, such as motions to dismiss (called demurrers in California state court), discovery motions, and motions for summary judgment. However, not many lawyers have actually gone the further step of putting a case on for trial. Even fewer lawyers have the skills to of successfully putting a case on for trial. But does this really matter, as long as you have a great feeling about your “litigator” attorney? After all, there is only a small chance that your case will go all the way to trial.
In fact, less than 2% of cases today go to trial. For example, in the state of Florida, which keeps actual statistics, less than half a percent of cases go to trial. So why does it really matter if your litigator hasn’t done a trial, or very few of them? Before answering that question, I would like to give you a little background.
A case can be divided into three phases. THE FIRST PHASE. The first phase takes place before the formal case is actually filed in court. This is the phase where the dispute first develops between the two sides. Sometimes, the differences between the parties are so great, from the get-go, that filing a law suit is inevitable and there is little if any communication before the suit is filed. An example of this would be a catastrophic injury case where because of the size of the loss and the severity of the injuries, there is no likelihood of obtaining a fair money settlement without first filing suit.
But in some disputes, the parties put in a lot of effort to resolve their differences before filing an action, for example if the parties have had a long-standing relationship. However, despite best intentions, the parties are often unsuccessful in resolving the dispute without court intervention.
THE SECOND PHASE. In the second phase of the case, a written complaint is formally filed in court and the case is then “litigated,” usually for at least a year before the final event, the trial. This second phase is what most litigators are familiar with. During this phase, the lawyer must “prosecute” the case using formal discovery techniques to uncover evidence, thus moving the case closer and closer to trial in the event the case doesn’t resolve in this phase.
Prosecuting the case during the second phase involves lots of writing and verbal communication skills. One of the goals of the second phase is for the lawyer to try to convince the opponent to resolve the matter favorably toward his client, before trial starts. The other goal of the second phase is to uncover the evidence to present in the third, trial phase of the case, if the case doesn’t resolve in the second phase.
THE THIRD PHASE. The third phase of a case is the trial itself, where the trier of fact, whether jury or judge, decides which party in the dispute wins, how much money has to be paid, and what other orders must be made.
So the question again is, does it really matter if your attorney doesn’t have solid experience presenting a case at trial, as long as he can litigate the case in the second phase? The answer is YES, it really does matter, despite that so few cases make it all the way to trial.
IT’S A MATTER OF CREDIBILITY. First off, If the opposing side knows or senses that the other attorney has never done a trial before (or has done very few trials), the inexperienced trial lawyer–even though experienced as a litigator–will not have the credibility with his opponent to influence a truly favorable result for his client in the second phase. His opponent will always be thinking that the inexperienced trial lawyer won’t have the courage, nor the experience, to go all the way to trial to get just results for his client. Yet, the biggest bargaining chip for case resolution in the second phase is impressing upon the opponent the increased risk of a large jury verdict (or for a plaintiff, a defense verdict), if the case goes to trial. Therefore, hiring a lawyer who is both a good litigator and a good trial lawyer is essential.
TRIAL EXPERIENCE MAKES A MUCH BETTER LITIGATOR.
One might think that a lawyer can have great litigation skills without having trial experience, as after all, many litigation skills, such as filing and opposing written motions, taking depositions, and negotiating settlements, require different skill sets than presenting a case at trial. While this is basically true, it is invaluable for a lawyer, in the second phase of the case, to both skillfully litigate, plus develop evidence from the trial lawyer’s perspective, i.e. what would be most convincing to the jury. The lawyer who only has litigation skills, and few or no trial skills, cannot do this.
This brings us back full circle to the first point–IT’S A MATTER OF CREDIBILITY. When a litigator, because of his trial experience, develops strong evidence for his client in the second phase of the case that will be convincing to a jury, he is a much more credible opponent. Then, there is a greater chance to resolve the case favorably toward his client in the second phase, without even having to go to trial.
This article was written by James A. Vickman, Esq., who can be reached at firstname.lastname@example.org, (310) 553-8533, ext. 143
Vickman & Associates is a law firm located in Beverly Hills, California, representing individuals and companies in litigation, trials and transactions.