Commentary by Lee Gill Cohen
Lawyers over the centuries have been on the receiving end of a great deal of criticism, character assassinations, bad jokes and metaphorical comparisons to various members of the animal kingdom, in particular the predatory seafaring type. Generally, when these less than flattering comments are being hurled at the members of the bar, it is the “trial lawyers” who are most associated with such commentary. Strangely enough, no matter how you define trial lawyers, they make up a very small percentage of the legal profession and most attorneys rarely visit the courthouse. On the other hand, most likely due to a combination of the media, legal dramas, and the often less than tasteful late night television advertising, it is the trial lawyers that have captured the public eye.
So what is a trial lawyer anyway? Believe it or not, you will not find a common definition even amongst lawyers themselves. Often the term “litigator” is used to represent those who “litigate” but that is not really that helpful because it is almost as difficult to get attorneys to agree on what constitutes litigation (although most often the word “fight” is used in the definition). Some say that there are lawyers who are “transactional” lawyers who generally sit behind their desks and create and review paperwork (or images of such on a computer screen) – and everyone else is a litigator.
To illustrate the confusion, I once had a case I was referring to a real estate attorney for the representation of a buyer of residential property in a sale that went bad. She expertly detailed to me the possible statutory violations by the realtor and broker and the client’s potential remedies, but when I then suggested that the attorney could probably resolve the matter with a firm and well drafted demand letter, the attorney responded that she does not do “litigation.”
In the realm of criminal law, most people would agree that a veteran prosecutor meets the definition of a trial lawyer. Prosecutors generally try a great number of jury trials throughout their careers, some simple but some complex with difficult legal, constitutional and evidentiary issues. The private defense attorneys and public defenders who defend the criminally accused, assuming they have experience in actually taking the cases to trial before juries (as opposed to those who make it their practice to plea bargain all their cases) would also qualify as trial lawyers. In the civil arena, it is a little more blurry. For example, a civil attorney might consider her or himself a trial lawyer just because that lawyer has presented a basic contract dispute to a judge for a “non-jury” or “bench” trial. A prosecutor would probably consider that “trial” to be just a big hearing with no comparison to a trial before the six members of the community that form a jury. On the other hand, instead of focusing on whether the case is to be tried before a judge or jury, many civil attorneys would look towards the particulars of the case such as the number of witnesses, length of trial, complexity of the legal or evidentiary issues and whether scientific evidence and/or expert witnesses are involved, before opining on whether the attorney who conducted that trial could hold him or herself out as a trial lawyer.
Personally, I believe that a trial lawyer has two characteristics – trial experience and trial mindset. Obviously, a trial lawyer must have experience trying cases, and generally, the more cases, the better. That includes questioning various types of witnesses and placing various items into evidence. The trial lawyer must also have mastered the art of persuasion, that is, how to present his or her case in the best light possible, and then convince the trier of fact that finding for his or her client is the most just decision. That often entails making a mountain out of a molehill, lemonade out of lemons, a silk purse out of a sow’s ear. As to the issue of jury vs. non-jury, a good trial lawyer needs to gain experience doing both because the presentation of a case varies greatly depending on who your audience is, whether jury or judge or even which particular judge the case might be presented to.
As to the trial mindset, a trial lawyer must have the mindset that every case she or he takes will go to trial and prepare the case accordingly. Although everyone knows that only a very small percentage of cases filed, whether criminal or civil, ever go all the way to trial and instead “settle,” a true trial lawyer will prepare the case as if it is definitely going to go to trial. It is through this process that the attorney will fully know the true strengths and weaknesses of the case and be able to either best resolve the case taking these strengths and weaknesses into consideration or be in the best position to try the case in the event that it is not otherwise resolved. This process must also start from the minute the client walks in the door and throughout the investigation of the case.
Simply put, for a real trial lawyer, the trial itself is the ultimate goal, unless or until the client and the lawyer decide that another resolution is in the client’s best interest.