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Benefits of choosing a firm to handle a trial, even if that firm didn’t handle the litigation

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Sometimes General Counsel feel it is appropriate to bring in a “hired gun” to take the lead at trial. Skill at trial advocacy is all well and good but to insert a lawyer not intimately familiar with the facts, people, politics, and economics of the case is a dangerous practice. Indeed, according to an article in 8-K, Vol. 4, Fall 2008 at 28, “In most cases it is wise to have the counsel who prepared the case in its earlier litigation stages take the lead in trying the case.”

On the other hand, the litigation partner you are now using may not have significant courtroom experience and it may make sense to add another lawyer that experience to play some role in the case. The article also goes further regarding appellate counsel: “If the amount of money at stake is substantial enough, consider retaining an appellate lawyer to supplement your trial team.”

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One response to “Benefits of choosing a firm to handle a trial, even if that firm didn’t handle the litigation”

  1. James Gailey says:
    December 3, 2011 at 10:52 am

    Just as it is essential that the trial team have the knowledge of the “facts, people, politics, and economics” of a case, it is imperative that the presentation of these facts be handled by an attorney who is skilled doing this. Like may things, it looks easy sitting in the back of the courtroom. It is extremely difficult however to take complex facts and “boil them down” into a form that a jury will understand and be persuaded by. It is simply not enough to just “let the facts speak for themselves” if the jury does not understand what is being “spoken” to them. A skilled trial lawyer is an expert in doing this. Moreover, it should be understood that an attorney who is an experienced “litigator” does not necessarily have the skills or experience in the trial of these cases.
    I have had the privilege not only of handling over 100 trials, most of which have been in federal court, but to also teach litigators throughout the US as well as in Europe and Latin America, trial advocacy skills. One of the most common problems of these lawyers is the fear of leaving some facts out of a presentation. Sometimes facts that have been developed tend to confuse the jury or obfuscate the critical factual issues. The tendency of most lawyers is to put everything in because it is all important. The critical examination of facts and the weighing of real importance vs risk of confusion is where the trial lawyer earns his money. This is another of the skills that an experience trail lawyer has developed.
    I also agree that the introduction of appellate counsel in the early stages of litigation and trial is an excellent strategy because this helps to “manage” your record on appeal.