Getting Corporate Counsel To Think Like a Trial Lawyer
Posted By: Dave Carothers
Corporate counsels are often tasked with the awesome responsibility of picking outside counsel to defend the corporation in a matter that may ultimately have to be decided by a jury. Often this selection has to do with prior relationships, reputation of the firm, history of pre-trial procedural success and the like. More particularly in the employment litigation context, the expectation of a lawyer’s ability to dispose of a matter through summary judgment is a big consideration. Consequently, corporate counsels tend to view litigation as a series of procedural steps leading to summary judgment: response to the complaint; discovery; attempt at mediation; summary judgment. However, the prospect of heading to court should the case or some of it survive summary judgment should lead to a highly different set of criteria about who should try that matter. In the same vein corporate counsel may have the tendency to view a trial pretty much the way they view the procedural steps leading to it: a process including jury selection, opening statement, examination of witnesses, closing argument, deliberations and verdict (hopefully a good one).
To maximize the probability of a successful outcome, I propose that you accept the radical idea that litigators and trial lawyers are not the same being. Therefore, to select a trial lawyer to defend your corporation before a jury may require some understanding and appreciation of how the two are different.
Trial lawyers are personalities. They take up space physically and emotionally (even trial lawyers small in stature). Trial lawyers love to tell stories gathered from complex facts and offer analogies to make points to a jury. Trial lawyers think big. For example, In a wrongful termination lawsuit against a small to medium size company, a case is not just about this plaintiff and this defendant and fine points tossed back and forth about implied contracts but calls into question the entrepreneurial spirit of this country and how extortionist lawsuits threaten everything this country encourages about risk taking, individualism and economic prosperity. No lawyer will win a case on personality alone, but judicial history is replete with examples of where it was a factor among others that saved the day.
Trial lawyers talk in themes. A theme is a short summation of a case that characterizes what the case is all about and thereafter becomes the filter for the evidence to be presented. Sometimes this is referred to as the “theory of the case.” The case’s theme should be one or two sentences stated in plain and simple English. For example, in a discrimination case, “Mr. Smith hired the plaintiff, Ms. Jones, eighteen months ago so how can she now say he terminated her because of her gender?” A theme should make sense to you, a jury, a judge, a newspaper reporter and your neighbor. It is the punch line that gets the jury interested and open to hear the evidence in support of it after the opening statement.
Trial lawyers use focus groups. Because trial lawyers talk in themes they are also obsessed with making sure that theme resonates with the community in which the case is being tried. The best way to do that is through a focus group. Note that a focus group is not a mock trial. The difference is significant. A mock trial involves a mini presentation of the case (including a stand - in arguing the plaintiff’s side) from beginning to end and can take a number of days to complete. A focus group, on the other hand can be done in a day where “both” sides present what they believe is the hot issue or hot document or key witness examination (usually video of a key deposition) and then get feed back from the mock jury. Both provide reliable information but the mock trial is significantly more expensive than the focus group presentation. Additionally, there are ways a good trial lawyer can cut the costs even further by modifying the set up and presentation of the focus group. The point is that it is standard practice to use some form of focus group presentation before the actual trial and many consider not doing so akin to walking into court guessing about everything.
A jury trial is unlike any other legal proceeding your company will face. While even a seasoned trial lawyer cannot guarantee a result in a jury trial, an inexperienced litigator in front of a jury is almost always certain disaster. A runaway verdict may be overturned on appeal or reduced by the trial judge or court of appeals but the publicity of an adverse outcome may cause insurmountable media damage and may have wasted enormous human and financial capital within the organization. It is, therefore, important to think like a trial lawyer when selecting counsel to stand up and represent your organization at trial.