When Faced with Business Litigation, be Selective About Legal Counsel

By Sean E. Breen, Esq.

An interesting phenomenon has taken place over the last few decades in the legal profession that has had serious implications in the business world. The number of business lawsuits has increased and the number of lawyers has almost tripled, so it should be easy to find an experienced trial lawyer to represent you or your business in a lawsuit, right? Wrong. While the number of lawsuits is up, the number of courtroom trials has dropped dramatically in both federal and state courts, according to numerous national studies. It’s widely known as the vanishing trial phenomenon. This drop in courtroom trials has created a glut of attorneys who have rarely -- if ever -- stepped foot in a courtroom to take a case to trial.

Some business people think their attorney’s lack of jury trial experience isn’t so important because many cases are now being resolved through settlements, mediation, and arbitration. What people are overlooking is how often the threat of the trial outcome drives the case result in these other forums. When your business is on the line, you need a trial attorney representing you that makes that threat of a large favorable trial outcome real.

There is a significant difference between a trial attorney who has tried cases and a litigator who may have “handled” cases, but tried very few. “Litigators” who have minimal trial experience or atrophied trial skills don’t present the type of trial downside your opponent needs to fear. Plus, lawyers with inadequate trial experience are often unwilling to undertake the risks of trial or unable to evaluate those risks adequately for purposes of settlement advice. With distorted settlement advice, businesses pay too much or recover too little. And keep in mind, if the case doesn’t settle, you wouldn’t want to go to trial with a lawyer who doesn’t try cases anymore than you would want to have surgery by a doctor who has little experience in the operating room.

Here are some things to keep in mind when searching for the right trial attorney for your business:

1) Be proactive. Don’t wait until you get served with papers or a competitor steals a trade secret before you start your search. Have a short list of attorneys ready.

2) Networking is key. Talk to business friends and people you trust with situations similar to yours and find out what their experience has been. Seek recommendations from someone you know to have good judgment or has had a good experience using an attorney in a similar case. Talk to lawyers you know in other areas and ask who can try a lawsuit and who just pushes paper. Your city or county Bar Association can also give you a list of attorneys.

3) Do research about the names that you have been given. Martindale-Hubbell provides a Directory that gives basic information and biographies of most attorneys in your area (www.lawyers.com). It includes a rating based on polls of how their peers evaluate them in terms of ability, expertise, and integrity. Check the websites of relevant law firms to get a sense of experience, attitudes, specialties and results..

4) Don’t be shortsighted on legal costs. Some companies are hesitant to hire good, experienced lawyers due to legal fees, but it can often be a more expensive regret if you don't. Pick your legal advisor from the best. With trial lawyers, you need excellence. Mediocre can be very expensive.

5) Interview more than one lawyer. When interviewing, meet with the lawyer who will be actually handling your matter. Evaluate the style and attitude of each lawyer that you interview. Here are some questions you should ask each lawyer:

1. What is your actual trial experience, in general and in this field specifically?

2. When is the last time you tried a case to a jury and what was the result?

3. Have you handled matters like mine in front of a jury and with what results?

4. What are my options in resolving this matter?

5. Approximately how long will it take to resolve?

6. What are your rates and how often will you bill me? Do you bill for expenses?

7. What is your ballpark figure for the total bill, including fees and expenses?

8. How will you keep me informed about progress and how often?

Get an attorney with trial experience, someone respectful, someone you trust and someone with personality. Don’t let the vanishing jury phenomenon make your business the guinea pig for a litigator with no trial experience. There are a number of excellent, experienced trial lawyers available to help your business.

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