It is not uncommon for individual and corporate clients to begin navigating a dispute with counsel that have a background in transactional matters. However, when a dispute becomes litigious or begins to look as if it might, your legal team should include attorneys with trial experience. It’s a different skill set. As a result, working with attorneys skilled and experienced with trials can help you either avoid a trial, or if one is unavoidable, give you confidence that your case has been prepared with an eye towards putting you in the best position to prevail at that crucial stage.
At Delahunty & Edelman LLP, our San Francisco-based trial attorneys are always ready to take on a trial in federal court or in one of California’s Superior Courts. We have spent our entire careers preparing for, and taking cases to, trial, including in high-stakes commercial and criminal matters. If you need our help, even if it is to join your trial team on the eve of trial, we want to be a part of your team and help you win.
At Delahunty & Edelman, we live and breathe litigation. Quick on our feet and ready to aggressively defend the interests of our clients, we bring a depth of experience and skill to all stages of litigation. Put simply, we became lawyers because we wanted to be in the courtroom and be in front of a jury.
The first phase of litigation is the discovery phase. Attorneys often grumble about their disdain for the discovery phase. This attitude does not benefit the client, however. Instead, the attorneys at Delahunty & Edelman LLP approach the discovery phase understanding that is often the phase where the strategies used and decisions made ultimately determine who wins and who loses when the case ultimately gets to trial, or in the case of a negotiated settlement, how favorable that settlement is to each side. Leveraging success during the discovery phase typically comes down to effort and persistence. Put simply, the diligence and tenacity of your attorney can have a huge impact on the likelihood of your success. During discovery, you should expect your attorney to be working harder than his or her opponent.
This does not mean a “scorched earth” approach is the best strategy. Instead, most clients benefit from attorneys who are surgical during discovery. For example, we excel in depositions by focusing on the questions that matter and do not waste resources exploring peripheral issues.
Discovery is as much a game of defense as it is offense. Here again the thoroughness of your attorney is critical. For example, should you, or your employees, be called to sit for deposition, you should be confident that your lawyer has fully prepared the witness and has considered the full range of questions that are likely to be asked. At Delahunty & Edelman LLP, we never want our clients to be surprised during a deposition. The best way to achieve that result is through preparation – not luck.
If discovery concludes without a settlement, a case will likely either settle on the eve of trial or actually proceed to trial. Most attorneys assume that a case will never go to trial, however. In our view, this is a huge mistake. At a minimum, the failure to fully prepare for trial weakens a client’s negotiating power prior to trial. For example, it often becomes evident as trial gets closer that one side is not fully prepared, which emboldens the other side to take more aggressive negotiating positions.
Finally, when cases do go to trial, a few factors have an outsized influence on the outcome. First, which party will navigate the rules of evidence better than the other? Second, which party’s “star witness” will be more credible? Put simply, ensuring that your evidence is admitted and your witness is believed is the best predictor of success. Here again, clients will benefit from experienced trial attorneys. You should be confident that your attorney will earn the court’s trust on evidentiary disputes and effectively persuade the jury with adept direct and cross-examinations of witnesses.
Some disputes go to arbitration rather than trial. While similar, there are differences. Arbitration is typically shorter than a trial (perhaps as short as one day) and should be less expensive than a trial.
In addition to the benefits of requiring less time and expense, arbitration may be favored for additional reasons. Arbitrators are likely to be more flexible in admitting evidence. For example, evidence that may not be admissible in a court proceeding, like hearsay, might be admitted in evidence in an arbitration. Arbitration also provides the benefit of privacy to the parties. Whereas a judicial proceeding is public, an arbitration is not, and the details of the dispute and underlying facts are therefore generally not known to anyone besides the parties and the arbitrator.
It is important to note that even though arbitration has many advantages, it may not always be preferred over a trial. Plaintiffs and defendants alike may wish, for different reasons, to have a public trial—either in the pursuit of justice, vindication, or public exoneration. Furthermore, limitations on the admission of evidence, as well as closer adherence to judicial precedent, may make a trial preferable over arbitration in some circumstances. This is particularly true where your attorneys are highly skilled at navigating the rules of evidence and pre-trial procedural hurdles.
Often, however, arbitration is initiated pursuant to an arbitration clause that the parties are contractually obligated to follow and, therefore, the parties frequently do not have a choice about whether choose trial instead of arbitration.
If you would like to learn more about our approach to litigation, including trial, please contact us. It is one of our favorite things to discuss—so we are always available for consultation.