Mistakes Smart Clients Sometimes Make when They Hire Litigation Counsel

In-house counsel are more sophisticated today than ever when hiring outside litigation counsel. Still, sometimes important criteria are overlooked when selecting a lawyer to represent them in court. Here are some common mistakes intelligent clients sometimes make when selecting litigation counsel.

Hiring Litigators Without Real Trial Experience
Surprisingly, in-house counsel often hire lawyers without any real trial experience. Shockingly, it is common for clients to hire trial lawyers without asking how many cases they have tried. There is a difference between a litigator and a trial lawyer. Good litigators excel at written advocacy and legal strategy. They can even be effective in short hearings before a judge. But trial lawyers possess an additional skill set. The ability to examine and cross examine live witnesses effectively, to think quickly on their feet, to convert complex and technical issues into terms jurors can understand, to connect with lay folks, read their signals, and react instinctively on the fly, to understand the process, the written and unwritten rules of the game—these are among the skills of a real trial lawyer.

Clients hire counsel knowing that most cases settle before trial and presume therefore that trial experience is irrelevant. But settlement values invariably reflect the parties’ expectations of how they will fare at trial. And those that hire lawyers without a credible trial threat can expect to pay more on average in any settlement. Once your opponent realizes your lawyer is unable or unwilling to go to trial, you’re significantly disadvantaged, at any stage of the case. Wise clients hire lawyers who excel as both litigators and trial lawyers.

Beguiled by Kaplan’s “The Law of the Instrument”
American philosopher Abraham Kaplan coined the phrase “the law of the instrument” as a form of the human tendency to overvalue familiarity. In The Psychology of Science, Psychologist Abraham Maslow further described the phenomenon this way: “if all you have is a hammer, everything tends to look like a nail.” Whereas in-house counsel tend to hire lawyers they know—through personal or professional experience—the lawyers they know are not always the best for the job. Clearly, clients must be able to trust their lawyers and work well with them. When selecting the best person for the job, however, an over-reliance on familiarity often leads to poor choices. Lawsuits are sui generis. No two are alike. The best lawyer for one case is not going to be the best lawyer for every case. Yet, sophisticated clients too often go back to the same lawyer over and over again to represent them in court, without properly assessing whether he or she is in fact the best choice for each unique assignment. Factors that should be considered include the fit between the lawyer and the venue, the lawyer’s expertise in the subject matter, the temperament of the court, the lawyer’s reputation, strategic vision for the case, litigation style, and ability to work effectively with witnesses and opposing counsel. Clients who go back to the same litigation counsel for every case in every locale will eventually pay the price.

Hiring Lawyers, Not Law Firms
In response to the big law excesses of the 80’s, in-house counsel in the 90’s became fond of saying “we hire lawyers, not law firms.” This reflected the clients’ view that the skill and qualification of a given lawyer was more meaningful than the institutional attributes of the firm they worked for. Most still repeat that mantra today. The truth, however, is that clients hire both the lawyer and the law firm. Yet even the most sophisticated in-house clients struggle to understand the factors that differentiate one big firm from another in ways that might be relevant for a litigation engagement. Does the firm’s compensation system reward collaboration or incent competition between its partners? Does the firm’s fee system allow for the firm to share in the client’s expected risk and reward for a given matter? How are cases staffed? What are the unforced attrition rates and how is turnover addressed? Does the firm train associates in ways other than at the expense of the client? How does the firm manage inefficiency, cost expectations, and outcome probabilities? Clients should understand that lawyers come into any new engagement with the baggage of their firm. Some good and some not so good. Clients that understand this and can differentiate between firms will be happier in the end.

An earlier version of this article appeared in the April 2015 issue of Today’s General Counsel.