There is something special about being a trial lawyer. Each of us has a unique story of how we got here. For me, I admit that I stumbled into it by luck. It wasn’t a noble commitment, and I did not choose this path because of some past experience or a perceived destiny. When I decided to be a trial lawyer, I honestly did not know there were other kinds of lawyers.
Neither of my parents was an attorney, and I knew only a handful of lawyers growing up. During college, I grew to understand that lawyers were integral to business. I read what I could, and I followed legal issues in media. Still, with no access to a true inside perspective, I developed only a limited knowledge about what lawyers actually do. By the time I decided to go to law school, my understanding of the lawyer’s job largely mirrored public perception. Real estate, mergers and acquisitions, and finance lawyers rarely make headlines in mainstream media; and when they do, it is hard to discern what they actually do. Trial and appellate lawyers, on the other hand, frequently appear in and are romanticized both positively and negatively in media. During my formative years, I lived through the Oklahoma City bombing trials, People v. O.J. Simpson, Bush v. Gore, In re Enron, and United States v. Microsoft. I also grew up with films like A Civil Action, Primal Fear, Runaway Jury, and—of course—My Cousin Vinny. Who doesn’t want to be Matt Damon’s character in The Rainmaker?
Needless to say, I was already set on trying cases when I arrived at law school, and no one could have persuaded me to take a different path. As a student, I dutifully followed the universal guidance laid out for aspiring litigators. I studied hard, learned to write, and joined the moot court team. After law school, I accepted a clerkship, where I got to spend my days analyzing important legal issues. As clerks—above all else—we had to get it right, and the work product had to exude the level of dignity, authority, and quality befitting the court. Throughout this journey, the craft was paramount.
After finishing my clerkship, I arrived in private practice and had to adapt to its distinct dynamic. In private practice, I quickly learned that we pursue neither truth nor justice—at least not in the abstract sense. Instead, we advance our client’s truth to seek our client’s justice—within the bounds of ethics, the facts, and the law, of course. The craft remained paramount, but for different reasons. Every letter, filing, and motion reflected not only on the lawyer signing them but also on the client the lawyer represented. The client’s interest dominates our work (or at least it should), but we do well to remember that our clients hold us in equally high regard. On my first day of law school, the dean cautioned us to always remember that we have the solemn privilege of working with clients when they face some of life’s most extraordinary circumstances: a failed business deal, a major accident, a divorce, or an indictment. While we work for our clients, they look to our guiding hand to navigate significant challenges.
Our responsibility to the client creates an oft-ignored tension. We love to try cases. We see the beauty in a tight cross, a clean direct, and a dramatic summation in a way others don’t. We love it so much that we willingly endure the duller tasks that predominate early-stage litigation for months, or even years, just to have the chance to eventually say our piece to judge and jury. Those who don’t see the beauty don’t last—the dilettante can only white-knuckle the drudgery and conflict for so long before giving up on trial work. Our craft makes us unique. While our transactional colleagues give indispensable advice and are integral to productive commercial negotiations, we act as officers of the court who have the great privilege to try cases. And alongside this privilege, we also bear the serious responsibility of representing the interests of another in court.
Unfortunately, as much as we love trials, our clients generally do not. Trial is our best moment, but our clients typically do not want to share in our best moment unless they have to.
For one thing, trials are almost always bad for our clients’ businesses. A trial can mean a failed business deal: someone owes our client money or the client is accused of owing money. A trial can mean betrayal: the client’s trusted advisor breached fiduciary duties or a professional is wrongly accused of doing the same. Or a trial can mean tragedy: a foreseeable accident hurt or maimed someone, or our client is wrongly called to account for an unforeseeable harm. Even if vindicated, the client has likely lost a trusted commercial partner or suffered from damaging publicity by the time the trial is over.
And this is not all. On top of everything else, the client has to bear the significant costs of litigation. This is the one area of practice where I am jealous of our transactional colleagues. They get paid when the deal closes, with legal fees sometimes shown as a single line item on a closing statement paid out of sale or loan proceeds. When those deals close, it signifies growth, success, or hope for the future. Our fees are different, and they accordingly get a very different reception. For months, sometimes years, our invoices keep arriving. We are like an elusive mosquito in a tent, constantly reminding our clients they are headed to court. Realistic and pragmatic clients appropriately budget for our fees as a cost of doing business, but none would choose to pay if given the option to avoid litigation altogether. That is not to say our clients are unhappy with our work or our fees. But our clients very likely wish they never had to hire us in the first place. Adding legal fees to whatever led the client into litigation is like rubbing rock salt in an open wound.
Another burden is inconvenience. Litigation is distracting. It adds to the already significant demands on clients’ time and resources. Early in the case, otherwise productive employees are pulled away to collect documents and information and to educate outside counsel about the business and the commercial facets of the disputed issue. Clients sometimes have to produce sensitive financial metrics or proprietary information in discovery—often in litigation involving their competitors. Key employees have to give depositions, forcing them out of the office for days as they prepare to testify and face what can be a hostile interrogation. The list goes on. And this is all before the trial itself, which is even more stressful and inconvenient for the witnesses than the depositions that precede it.
Finally, the client has to grapple with a level of uncertainty that can make even the most sophisticated litigants uncomfortable. The uncertainties are especially frustrating for the business client that must report to internal stakeholders on issues affected by the litigation. If a client’s customer refuses to pay a large invoice, claims the supplied goods don’t meet specification, and forces litigation—how does the business unit leader account for the dispute on the profits and loss statement? Or say your client’s employee was injured in a workplace accident and claims damages that exceed insurance coverage. How can the business unit leader accurately value this potential liability? Making matters worse, the client has to make these judgment calls while unpredictable judges and opposing counsel upend even the most thoughtfully developed litigation budgets.
The reality of trial creates tension between lawyer and client. But it does no good to simply identify this point of conflict. For better or worse, we value and prioritize trial experience over other aspects of our practice. And, for better or worse, successful businesses will always face conflict. Ben Franklin said there were only two certainties: death and taxes. For successful businesses, these are taxes and litigation. To ease the tension, I try to remember that we can be most useful to our clients when we look outside ourselves and focus instead on them. We all know that an effective impeachment or a dramatic closing can be beautiful, but the truth is that clients care about their businesses much more than they care about us. And while clients will always remember the big trials, they never wish they could go through them again. Once we recognize the tension, we can best serve when we meet the client where the client is, understand the client’s business, and recognize our own place within it.
Opportunities abound to add value outside of the courtroom, when we take care to learn the client’s business instead of doing our work in a vacuum. Here are three examples.
Witness preparation. In big commercial cases, the most pivotal witnesses are sometimes middle managers or even line employees. They are the soldiers who exist on the front lines of the business, and they execute on the client’s commercial responsibilities. They didn’t negotiate the contract, but they implement it. They are insulated from senior executives and have little exposure to the high-level decision-making that led to the dispute they have to testify about. They could be a customer service representative, an account manager, or a billing assistant. Often, your case is their first introduction to litigation, and they arrive terrified for their deposition prep. These deponents deserve our full attention and effort, but the witness’s perspective is often overlooked, to the detriment of case and client. You can fill prep time by dictating a list of dos and don’ts and trying to control the testimony, an approach that inevitably fails because it gives witnesses the impossible task of testifying how they think you want them to testify for your case. Or you can engage with the witnesses, learn about their role, and try to understand their perspective. If you level with the witnesses like this, you can teach them about their impact on the client’s case and make them comfortable enough to give their testimony. Committing to thoughtful witness prep ultimately has a massive positive impact on the deponent’s experience and, importantly for the long game, the quality of the deponent’s testimony.
The strategy. Outside counsel has to understand the business—beyond the facts of the case—to effectively advise on what issues to pursue and what issues to ignore for the sake of the business relationship. For example, sometimes parties sue one another in the midst of an ongoing and salvageable commercial relationship. The case could arise because the parties have different views about a single material term, while the rest of the contract functions well. Or the parties might have a dispute under only one of the many contracts they share. While it is obvious that scorched- earth tactics will not serve the client in these cases, it takes some nuance to craft the right approach. These complex commercial relationships can also give rise to creative settlement opportunities—but only if outside counsel understands the business and is creative enough to leverage them. The right strategy may lead to settlement and keep the client (and you) far away from trial.
The expert. Expert witnesses have the potential to add tremendous value when used effectively. They can also be a missed opportunity—and even a liability—when used ineffectively. This happens easily when outside counsel does not understand the client’s business. Big companies do not operate in a vacuum. Even in larger cases, only a part of the client’s business tends to have legal relevance, but it often pays to assess the legally relevant facts within the broader context of a client’s business. Experts can fall victim when lawyers fail to do this. Imagine a valuation expert opining that an option contract is worth tens of millions of dollars when the client’s employees regularly valued the same option in the ordinary course at a fraction of the expert’s proposed value. Or an industry expert claiming that excess volume fees under a supply agreement were unfairly punitive when, unbeknownst to the expert, the client immediately sold the purchased goods to another party under another contract at a handsome profit. I have encountered each of these situations. In both instances, the expert was failed by the lawyer, who didn’t understand the client’s business well enough to avoid these unforced errors. Taking the extra time to prepare the expert on the factual and legal context outside the scope of the expert’s assignment is a necessity long before trial.
These are just a few examples. The common thread is that we can enhance almost every aspect of our practice, improve our client service, and become better equipped to achieve our clients’ objectives simply by making the effort to understand our clients’ business all along, instead of working with our heads down until voir dire.
Like most trial lawyers, I love the craft. I will continue to relish trials when I get to do them. But as happy as I am to try a case, my clients are not likely to share that enthusiasm. I try always to remember this tension and do my best to ensure that the client, not the trial lawyer, is the focus of the litigation.
