Thursday, August 07, 2003
What do I mean when I describe myself as a "trial lawyer"?
To the limited extent the general public has any consensus of understanding, it probably associates the phrase "trial lawyer" with members of the plaintiffs' personal injury bar — generally speaking, those lawyers who make a full-time career of representing only injured individuals (or clumps of 'em) as plaintiffs (that is, those doing the suing) against deep-pocket defendants (typically either businesses or individuals who have insurance coverage, or sometimes those businesses or individuals whose net worths make them otherwise worth chasing), usually on a percentage contingent fee basis.
Indeed, this subset of lawyers has tried to expropriate the phrase "trial lawyer" for their own exclusive use — an example being the "Texas Trial Lawyers Association," which refuses full membership, for example, to those courtroom lawyers who commonly represent defendants instead of, or even sometimes in addition to, plaintiffs. I regret that imprecision, and somewhat resent the implied arrogance. Although I've never belonged to the TTLA or its national counterpart organization of plaintiffs' personal injury lawyers, I have, however, made my living during portions of my career primarily by representing injured individuals as plaintiffs. When done ethically and professionally, that can be a noble calling; it's very unfortunate but undeniably true that some members of the plaintiffs' personal injury bar fall short of those goals. But whether you love them or hate them, the lawyers who represent injured people are not the only "trial lawyers" around — and indeed, quite a few of them aren't genuine "trial lawyers" either, as I use the term.
No, in my (never-too-humble) opinion, the term "trial lawyer" means, or ought to be understood to mean, simply "a lawyer who actually and regularly goes to trial."
That includes both criminal practice, which means cases in which some instrument of government (like the district attorney) claims that a defendant ought to go to jail and/or pay a fine for committing a crime, and also civil practice, which is just about everything else (and typically means someone suing for an award of money based a claim that the defendant engaged in some noncriminal misbehavior, breech of contract, or so forth, and also suits involving family and probate law).
There are, however, a vast number of lawyers who "handle lawsuits" — either pressing them (as lawyers for plaintiffs) or defending them (as lawyers for defendants) — and yet who, as a practical matter, essentially never actually go to trial. These aren't "trial lawyers" — instead, they're more properly described as "litigators." All trial lawyers are litigators, but not vice versa. Indeed, "litigator" is a term that real trial lawyers usually use with some degree of disdain. Those who are only litigators (that is, those who aren't also trial lawyers) often proudly call themselves "litigators" because they think it sounds more sophisticated — but it's really because they don't know better.
Almost without exception, the very best and most capable lawyers I've ever met — in whatever kind of case, on whichever side of the docket, and including those who handle the biggest cases with the highest stakes — have proudly considered themselves to be "trial lawyers," rather than "mere litigators."
It's true, and a good thing — in fact, essential — that the huge, overwhelming bulk of all cases, criminal and civil, don't actually go to a full-blown trial on the merits (which can be either with or without a jury). Most criminal cases are resolved through plea-bargains; most civil cases are resolved through negotiated settlements (often after the courts have ordered the parties to participate in "alternative dispute resolution" methods like nonbinding mediation). And thus even real trial lawyers only go to trial in a small fraction of the cases they handle. But the point is, they can go to trial — they're willing, able, and unafraid to do so — whenever the situation requires it.
I frankly think that the Brits (and Scots) — from whom we borrowed most of our common law and our legal traditions in America — have a superior system. In general, today as historically, the only UK lawyers who actually get to speak to a judge or jury are "barristers" who are specially trained specifically for that task. "Solicitors" may prepare cases for trial, and advise and assist their clients in many other ways that relate to litigation. But only barristers actually try cases — and as a consequence, they tend to be good at it! Barristers also still avoid clumping up into international megafirm conglomerates, in sharp contrast to solicitors; barristers tend to display the sort of self-confidence and self-reliance that genuine Texas trial lawyers can relate to as well. One riot, one ranger still tends to be the rule, and not the exception, among trial lawyers.
Almost without exception, a client is better off having a trial lawyer — one who's been to trial often enough to not be scared of the process and to be good at it — even in that vast majority of cases that end up settling. This is especially true if the opponent is represented by a litigator, because more often than not litigators desperately want not to have to actually try a case. In addition to whatever legitimate reasons there may be to avoid trial, litigators end up being motivated — and the advice they give their clients ends up being compromised, and their performance as both counselors and advocates ends up being diluted — because of their secret, purely personal fears and insecurities.
(Earlier in my career, I was proud to earn formal certification in both "Civil Trial Law" and "Personal Injury Trial Law" from the Texas Board of Legal Specialization; I regret that I let those certifications lapse a few years ago, and I'm considering seeking recertification. In the sense I use the term, there are a great many "trial lawyers" in Texas who, for one reason or another, aren't board certified, but by and large, I think those who have earned either of those formal certifications are indeed the genuine article.) [UPDATE (Sun Feb 20, 2011, at 12:30pm): I finally reapplied, and retook and passed the certification exam, in 2010, so I'm once again board certified in Civil Trial Law.]
As it happens, most real trial lawyers actually get to trial less and less frequently as their careers progress. Partly that's because, in general, they handle bigger, tougher cases with higher risks involved, and there are more compelling reasons for those cases to settle regardless of how capable and unafraid the lawyer is. Partly it's because real trial lawyers (and their clients) benefit from the reputations they've earned, and the additional negotiating skills they've acquired, over the years. From a purely personal standpoint, I'm disappointed now that I can't get enough cases to trial anymore. But I know that my basic skills remain sharp, not rusty; and all I can do is keep pushing hard in all my cases, in hopes that the other side will miscalculate and act unreasonably in settlement negotiations, forcing us all to a trial that I, on a personal basis, will welcome. Metaphorically, a trial lawyer is constantly under fire, and in the words of Winston Churchill, "Nothing is so exhilarating in life as to be shot at with no result."
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