Switching Counsel: Should You Hire a Trial Attorney?

The decision to change or add counsel when you approach trial can be difficult.  In considering it, you may ask yourself a number of questions, but they can be boiled down to one: Should you continue to work with the legal team already familiar with your case (regardless of their expertise), or does it make it sense to hire attorneys with more experience at trial but who will have to learn the background of your case to prepare for the trial?  In this article, we discuss what you should consider in making this critical decision.

It Is Not a Common Question

As an initial matter, not many individuals and companies face this dilemma.  Most cases do not go to trial.  Many attorneys—as a practical matter—do not either.  Instead, the vast majority of litigation occurs before a trial, and many litigation attorneys spend a similar percentage of their careers engaged in pre-trial litigation, not actual trials.

Transactional Lawyer vs. “Litigator” vs. Trial Attorney

There are many other types of lawyers.  For example, a non-litigation attorney, sometimes referred to as a transactional lawyer, is someone who focuses on non-dispute matters that typically do not go to court or trial, such as assisting to document business deals or providing advice about complying with regulations.  “Litigators” are attorneys who handle legal disputes and lawsuits.  Typically, they are experienced and skilled in the earlier stages of litigation, such as drafting pleadings, conducting discovery, and filing motions seeking to win or narrow the case before trial.  Trial attorneys, by contrast, have more experience in the courtroom presenting evidence and examining witnesses.  As a result, they are uniquely equipped to handle the complexities of a trial. For example, trials often turn upon the ability of one of the parties to present and introduce evidence effectively.  But the rules of evidence rarely effect pre-trial litigation, and many litigation attorneys are less familiar and less comfortable with the nuances of those rules.  Similarly, speaking to—and connecting with—a jury is a different skill than speaking to opposing counsel, or even to a judge.

Jeopardizing or Strengthening the Outcome of The Case

Likely, attorneys who have been litigating your case up to the point of trial understand many intricacies of the crucial legal matter you are facing. They have presumably spent many hours examining records and discovery responses, researching all applicable laws concerning claims made or even claims contemplated but not made, and strategizing about the best way to settle the claims in your favor or perhaps even win without the need for a trial.  Some cases, however, cannot be resolved or won before the case is scheduled for trial.  When clients reach that stage of a case, they often contemplate whether switching to, or adding, a trial attorney would be worthwhile.

It is easy to succumb to what is referred to as the “sunk cost fallacy” when facing this question.  For example, it may seem that after spending significant funds on your litigation attorney to get the case close to trial, it would be a waste of that money not to see the case through to the end with that attorney.  This is a very common way of thinking.  Indeed, whether the old adage is true or not, most people do not want to switch horses mid-race.  But it is called a fallacy for a good reason – the logic is flawed.  Ultimately, the question is not whether money spent in the past was well spent, but rather: What is the best path going forward in light of available options and future (not past) costs?

It is true that bringing on a skilled trial lawyer will likely require that attorney to get up to speed on the history and facts of the case before making concrete contributions.  But overweighting that fact ignores the clear benefits of a new attorney.  A fresh set of eyes can be immensely beneficial.  For instance, a trial attorney may discover a strategy or piece of evidence that changes the strength of your case but that was overlooked by previous counsel.  Perhaps a previous attorney has become stubborn about considering new approaches.  Or, perhaps that attorney has less experience examining the facts through the lens of what the trial will look like or how a jury will react to them.  For this reason, a fresh set of eyes by a trial attorneys can significantly enhance your legal team and help position your case better for the courtroom.

What does a trial attorney have to offer you and your case?

It helps to first think about the basic structure of a trial.  During a typical trial, attorneys present evidence to a jury and ultimately decides how to weight that evidence.  By comparison, a judge resolves legal questions related to the presentation of evidence.  Once all of the evidence is admitted (usually via witness testimony and the presentation of documents), the parties are allowed to make closing arguments.  This is when the attorneys are finally allowed to connect the dots between pieces of admitted evidence and argue to the jury why the evidence weighs in favor of their client.  The judge will then instruct the jury as to the relevant law, which happens after the parties have argued which instructions they believe should be used.  Ultimately, the jury is allowed to consider the evidence and return a verdict.

At each stage, clients with the more experienced trial attorney will benefit.  For example:

1. Familiarity and Confidence with the Rules of Evidence: Lawyers often approach a trial with the wrong mindset.  They, for example, continue to think of the case as a story told by summarizing the countless hours of discovery answers, documents, and depositions that have led to trial.  That is not what actually happens at trial, though.

Instead, trial is about evidence — not facts.  They sound similar, but the distinction is crucial because significant facts known by the parties, and even the judge, may never be learned by the jury because the judge does not allow those facts to be admitted as evidence.  As a result, if a party cannot get the facts it knows admitted as evidence, then the jury will never know them.  Thus, it is a tactical misstep to build a case around the facts without having a high degree of confidence that those facts will be admitted as evidence.  Similarly, it is important to evaluate what the other party’s evidence—not story—will look like in front of a jury.  Your trial attorney should be able to explain how your evidence will be admitted and what strategy will be used to block the other party’s evidence from being admitted.

2. Oral advocacy skills: In our view, attorneys place too high a value on their ability to “think on their feet.”  In reality, most lawyers who appear to be “quick on their feet” are actually showing the results of hard work, diligent preparation, and experience.  Nevertheless, there is no doubt that some people are better at presenting a story to an audience.  Successful trial attorneys must have the ability to deliver effective oral arguments and present evidence in a compelling way.   Likewise, good trial attorneys must be able to connect with jurors, witnesses, and their clients.  Likeability matters.  The ability to read a room and exude confidence, eloquence, and knowledge can have a significant impact on the jury’s assessment of the strength of the case.
3. Jury Instructions and Issues that May Be Appealed: Good trial lawyers also play the long game.  They know that a trial often extends into an appeal.  For this reason, they are mindful of not letting their case turn upon an error that will be appealed, and they look for errors committed by the other party that may be appealed.  As to the latter, an attorney must know how to “preserve” an issue or objection.  Failing to do so may make it nearly impossible to prevail on appeal when contesting the issue, even when the error was obvious in hindsight.  One common area for such potential appellate issues is jury instructions.  While this part of trial appears routine to the jury and casual observers, jury instructions are usually the result of substantial negotiations and motion practice.  Failing to diligently preserve issues regarding such instructions can seriously undermine a potentially meritorious appeal.
4. People skills: The goal of a trial lawyer is to convince the fact-finder that the lawyer’s client is right.  At bottom, this often comes down to making good judgments about the best arguments and evidence that will connect with everyday people in the community.  Trial lawyers never lose sight of this goal and can adapt their approach accordingly.  For example, juries are good at identifying witnesses who are lying, and they often welcome aggressive cross-examination of a witness who has earned it through repeated falsehoods and answers that make no sense.  But bringing that same approach to examining a kindly elderly witness who is merely trying to provide accurate answers will alienate a jury and backfire.

If you are going to trial, it is crucial to have a seasoned trial attorney on your side. If you would like to learn more about our approach to trial, including the potential of serving as co-counsel at trial, please reach out to consult an experienced trial attorney.  Trials, and preparing for them, is a topic we always enjoy discussing.

Patrick Delahunty

Patrick Delahunty is a former federal prosecutor with deep experience in resolving disputes. He advises individuals and companies in complex criminal, regulatory, and commercial litigation.