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When is a Trial Attorney Not a Trial Attorney?

by Edward J. Kroger, MD, JD on July 20th, 2010

There are in excess of a million lawyers in the United States and many of these attorneys describe themselves as litigators or trial attorneys.  But with the vast majority of civil litigation cases ending in settlements, the number of cases actually being tried to a jury is trending downward.  It may not be surprising then that many “trial lawyers” have very little actual trial experience.  Clients should routinely ask about trial experience.  Here are some factors to consider when choosing a trial lawyer:

Jury trial or other resolution? In representing their courtroom experience, lawyers sometimes include cases that were dismissed on legal arguments, resolved in arbitration, or tried to a judge.  These are valuable experiences, but are very different from trying a case to a jury.

Tried to a verdict? Since many cases settle during trial, and often in pretrial before a jury is seated, it is important to distinguish how many trials the attorney has taken all the way to a jury decision.

First chair, second chair or something else? The key tactical trial decisions and the most important trial witness examinations are performed by the lead or “first chair” attorney.  The first chair attorney is ultimately responsible to the court and the client for the trial performance.  Second chair attorneys may have few or no witnesses at trial, perform legal research, help organize the case during trial, and generally assist the first chair.  While the second chair attorney is essential at trial, there is a significant difference between the roles of a first and second chair.  Larger cases may have a whole team of lawyers assisting the lead counsel.  You want to know how many cases an attorney has handled as a first chair.

Type of case? There are many small cases tried to a jury in a half day, sometimes with only one or two witnesses and minimal damages.  A typical medical malpractice case in Texas lasts about two weeks and may involve 20 or more witnesses.  There is a significant difference in difficulty between the two.  Damages in larger cases can involve significant permanent injuries or death and extend into the millions of dollars.

Identification of cases? Since all cases in Texas have a style (name), cause number, date and court, an attorney can provide very specific information about the cases she or he tried.  Much of this information can now be verified online.

Board Certification? To become board certified in Personal Injury or Civil Trial Law, an attorney must complete a certain minimum number of trials.  However, the considerations listed above are still relevant in evaluating the trial experience of a board certified attorney.  Furthermore, a significant number of very experienced trial lawyers are not board certified.

Since the majority of cases are settled, is significant trial experience all that important?  The answer is an unqualified “yes”.  The only way to obtain a good settlement is if the opposition knows you are represented by an experienced trial attorney who knows how to win jury cases.

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