Five Tips About Local Counsel Handling Out-of-State Cases

One reality following the recent pandemic is that most depositions and non-evidentiary hearings are now conducted remotely through Zoom or a comparative platform. The rapid rise of use of this technology allows more lawyers to handle matters outside their home turf. Lawyers historically simply referred out distant cases or would remain tangentially involved and have local co-counsel take the lead. Now, out of state lawyers are being admitted pro hac vice in record numbers. Clients who have outside counsel who are familiar with their business and preferences increasingly count on their main outside counsel to handle cases across many jurisdictions. The client saves its own time by having to educate fewer lawyers on its business and issues, and reduces outside counsel expenses by paying a reduced number of outside counsel for similar tasks. Handling cases out of town will likely increase as the world continues to become comfortable with remote hearings and depositions.

Whether you are seeking local counsel to help handle your case in another jurisdiction or you are serving as local counsel for an out of state lawyer, there are several important considerations to evaluate. Here are some of them.

1. Does Local Counsel Know the Judge?

That is always the first question a client will ask. Local counsel’s experience with a particular judge in a case is always helpful, but not necessarily the most important factor. Many jurisdictions have far too many judges for a civil lawyer to have practiced before all of them, and in many places, judges rotate on and off cases. So personal experience with a particular judge may not be the most important factor. But local counsel should know the ins and outs of the courthouse and be imbedded sufficiently in the legal community to know each judge to some extent. If local counsel has not had significant personal experience with the judge at issue, she should be able to immediately give you a report about the court generally, and about the judge’s individual preferences and reputation through connections in her firm or around town. Local counsel must spend time in the local legal community to get to know the judges and be known to them and the legal community. Whether a lawyer knows the judge well may be less important than if the judge knows the lawyer. A local counsel should be well-known enough in town so that the judge will immediately be familiar with the lawyer and her law firm either directly or by reputation. Often lawyers develop their relationships and reputations through service in local bar organizations. A local counsel’s local bar service is often a very important attribute.

2. Local Counsel Must Know Local Practice and Procedure

Fear of being “home-towned” is almost always the client’s first consideration when considering using out-of-town lawyers to handle a case. Local counsel’s job is to prevent the gaffes and embarrassment that an out-of-state lawyer might suffer through inexperience with the local practice. To be competent, local counsel must know the state (or federal) rules of civil procedure and all local rules and practices inside and out. The rules of evidence also vary from state to state, so local counsel must master those as well. And often the judge has her own individual rules. The state substantive law is also likely to be critical, making knowledge of state law on issues such as statutes of limitations and burdens of proof important. A strong local counsel has command of all the rules and procedures and will be a critical part of the out-of-town lawyer’s team.

3. Does Local Counsel Know the Courthouse?

Having a local counsel with extensive experience in the courthouse where the case will be litigated is also extremely important. Even within the same county, state or federal district, courthouse practice can differ substantially. Local counsel must have experience with filing requirements and procedures. Knowledge of the clerk’s office practices and preferences is a minimum requirement. Local counsel will be your guide if an in-person hearing is required and must be able to describe for you the practical and technological issues that are unique to that courthouse and courtroom. What is security like? Are there limitations on the use of computers and mobile phones in the courthouse? How are the courtroom tables arranged so you know how many lawyers and client representatives can sit in the courtroom and how that might relate to the view of the jury. What is the technology situation? Does the court have its own equipment for use of advanced technology, or will binders and whiteboards be needed? In many courthouses, the view of jurors is not equal for both sides. How does the court determine who has the better view of the jurors? Are there private conference rooms available outside the courtroom? Even knowing where the best bathrooms are can be a critical aspect of local practice.

4. Does Local Counsel Know the Community?

While few cases go to trial, let alone a jury trial, having knowledge of what the make-up of the jury may be is extremely valuable information and can affect a client’s view of settlement. Some jurisdictions are known to be “liberal,” having a record of high-dollar jury verdicts. Other jurisdictions have the opposite reputation, having a track record of defense verdicts. Will the local jury be diverse such that the diversity of the trial team is an important factor? Knowing a community’s reputation and jury make-up is another important attribute of local counsel.

5. Is Local Counsel a Good Partner?

Working with local counsel in an out-of-town case means finding the right balance of responsibility between firms. Is local counsel willing to take the lead on issues in a case, and comfortable taking a second chair position on others? Dividing responsibilities with local counsel can be challenging, and sometimes it is dependent on local practice. For example, many jurisdictions require local counsel to appear for every hearing and require local counsel to sign and file all documents submitted to the court. It is therefore important that local counsel be fully up to speed in a case and participate in a meaningful way. The challenge then becomes finding a way to divide responsibilities to take advantage of the strengths of main and local counsel and complying with the local requirements. Will your local counsel be a flexible and eager partner or a rigid obstacle to efficiency and success?

Being a good local counsel means that you have the knowledge and expertise of the judges, the courthouse the local practices and the applicable rules. A successful local counsel is a guide to all things local and a critical part of a client’s litigation team. If you’re open to serving as local counsel, how well do you score on these criteria? If looking for local counsel, make sure to ask all the right questions before making a recommendation to the client.