General Practice, Solo & Small Firm DivisionThe Compleat Lawyer
American Bar Association
General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Summer 1997 copyright American Bar Association. All rights reserved.
From the Editor
jennifer j. rose
jennifer j. rose, a sole practitioner in Shenandoah, Iowa, is editor-in-chief of The Compleat Lawyer. She can be reached by e-mail at firstname.lastname@example.org.
Most lawyers don't know the difference between a trial lawyer and a litigator. Like some Supreme Court justices, they'll stammer and mutter and boast that they can identify one on sight, but they can't define either.
I was well into law school before I ever heard the term "litigator." And I puzzled why anyone would brag about being a litigant or suffering from ichthyosis. Soon after, I learned that neither was necessarily true.
Later, naivete convinced me that the difference was merely a matter of prestige and dress. Trial lawyers wore sharkskin, and litigators wore Armani. In the movies, Walter Matthau and Bette Midler portrayed the trial lawyers, and Michael Douglas and Demi Moore the litigators. I continued to dwell in a state of confusion.
In a never-ending quest to sate curiosity, The Compleat Lawyer decided to investigate the matter further. Using highly scientific, confidential research methods, TCL deployed a research team of one. (I felt especially qualified, having studied statistics and social research methods back in college during the Nixon administration.) The research team surveyed randomly selected respondents from within and without the legal profession, asking them to identify and quantify the difference between a trial lawyer and a litigator. Implementing double blinds and placebos to assure the truth and veracity of all responses, extreme caution ensured that no living member of the bar was irreparably injured in the testing process.
The respondents were drawn from the List Serve Solosez (selected for their typing skills and access to a telephone), some lawyers who were hanging around St. Thomas (tapped for their abiding interest in the GPSSFS Spring Meeting), and a couple of guys at the Page County Courthouse (who were personally observed practicing law). The "others" category consisted of a cop, the guy who mows my lawn, and my sister.
The finely constructed query posed was: What's the difference between a trial lawyer and a litigator? I applied standard deviation, Planck's Constant, and commonly accepted accounting principles to the test results.
After the usual deliberation and meandering, and without actually answering the question, the overwhelming majority of the respondents preferred the term trial lawyer to litigator. And as lawyers are wont, most respondents furnished anecdotal instead of empirical evidence. The evidence was not pretty.
Litigators were characterized as highly skilled in discovery, negotiation, and settlement techniques, and were described as evaluative, analytical, risk-averse, and commercially oriented. They seemed to make a lot of money. Depicted as detailers, litigators would rather win their case (on a pretrial motion) before subjecting the case to the vagaries of judge and jury.
Trial lawyers were viewed as the commonfolk's advocate - impetuous, intuitive, street-smart, lacking the diligence and discipline to perform detailed legal research, and oriented toward personal injury and criminal work. They seemed to care a lot about truth and justice. One respondent typified the trial lawyer as one who might say "Ain't nothing bad ever gonna happen to you at the courthouse."
Each camp viewed the other pejoratively. Litigators deemed trial lawyers to be fun-loving, slipshod hip shooters, and trial lawyers considered litigators to be nitpicking, grandiloquent high rollers. Each claimed to have a greater love for the law, passion for justice, and client success rate than the other.
Miami lawyer Joe Matthews related an old Southern story to describe the difference: Clients told two lawyers to collect worms from a field. The first began by systematically picking up every rock in the field until he'd searched the entire field, finishing his work about dinnertime. The second went straight to the rocks covering wet soil, collected the worms, and took his client fishing. The first was a litigator, the second a trial lawyer.
Indianapolan Stephen Terrell insists that the distinction all boils down to whether the better lawyer is the one who convinces a jury to deliver a $1 million verdict or the one who preserves the error at trial and convinces the appellate court to reverse that judgment.
Only one lawyer, James Tyre (who agreed to an interview only after being promised that his name would appear in this column in 10-point type), insisted that he was and would always be a litigator. Confessing his lust to try certain cases, he explained with excruciating clarity the litigator's role in complex cases. The nature of the practice was the determinate factor. He reluctantly expressed some measure of fond admiration of trial lawyers, but TCL remains convinced that he felt the same way about puppies.
It became apparent that neither the litigators nor the trial lawyers were totally honest in their portrayals of themselves or each other. Since they weren't under oath, they probably saw a clever opportunity to delude the TCL research team.
Still unresolved is whether there's a distinction between lawyers, attorneys, and counsel. Pending further investigation and exhaustive analysis, while the term "lawyer" might refer to the species generically, one can reliably expect attorneys to be much older and better behaved than lawyers. While counsel are venerated and generally pretty smart, too, it's probably uncouth to refer them as "wise guys."
Somewhat striking were the similarities between trial lawyers and litigators. The chasm was not as great as might be observed, say between physicians and faith healers. Both sprung from common ground, were rooted in a desire to steer their clients through the rocky shoals of controversy, and thrived on work well done. Challenged to defend their self-perception, lawyers can usually be relied upon to distinguish, describe, disagree...and advocate.
BROAD DISCLAIMER: If we've maimed, defamed, or otherwise offended those claiming to be trial lawyers or litigators and those who love them, then we've done our job. You wouldn't have read this far if you weren't good-natured, would you?
Whether you fancy yourself a trial lawyer or a litigator, or a little of both, odds are that you practice in a firm. That firm may be you all alone, or it may be five kindred spirits, or it may be 400. The Fall 1997 issue of The Compleat Lawyer explores the life cycle of the firm, the relationships within the firm, and the practical aspects of the law of lawyering. John Grisham's character Mitch in The Firm might've saved himself some grief if he'd just waited for the very next issue.