Lean and Mean Litigation Blog

To All Aspiring Litigators - Get Thee To A Courtroom

Today it is tougher than ever for young aspiring litigators to get hands on in court experience.  More and more young litigators are becoming litigation partners having never tried a case let alone first chair it. 

Litigator used to mean trial lawyer, now it means litigator.  The Catch-22 of today's litigation environment - cases are so big the clients and the situations demand that senior lawyers handle the critical in court aspects of big cases, few cases are tried and little cases are even less likely to be tried.

It even afflicted my generation.  While my firm - a mid-size firm - took on smaller matters just so that we could get trial experience and I volunteered for any case that was likely to go to trial ( I tried a defective wood deck case,  a defective kitchen linoleum case etc.), most private  litigation associates - particularly those  in large firms  - got no trial experience.  Most of them didn't even get to take depositions until they were senior associates "let alone try cases.  As a result, many became "litigation" partners without ever trying a case.

It is even worse today.  Why?  Because now it is accepted in most firms that "litigation" partners may never try a case.  But this is a real deficit for anyone who is serious about being a litigator.  If you don't know how it is to actually try a case, you are at a distinct disadvantage as a litigator.

The best litigators prepare every case - even if they think that they are going to get it dismissed - with the assumption that it is going to be tried.  This approach causes one to shed the unnecessary and focus on the necessary.

But if you haven't tried cases then you don't have a clue about how to prepare a case for trial.  The two go hand in hand.

Those who have trial experience are going to be a rare breed and under the law of supply and demand, those of you who want to have a leg up on your competition should get thee to a courtroom.

If your current firm won't provide you with this experience, start looking for some place that will.  Those who do - who take the risk of forging their own career path - will achieve personal and professional autonomy while at the same time will have the confidence of knowing that they know the score when it comes to this thing called litigation.

 

THE DANGERS OF RELYING ON E-DISCOVERY SOFTWARE EXPOSED AND WHY A CLAWBACK PROVISION IS THE WAY TO GO

Not sure why but I received a client alert bulletin from one of the ALM top 10 firms [I am not a client and have been adverse to this firm many times].  The bulletin advised me about how a district court had recently slammed a defendant and its counsel over a privilege waiver battle.  Apparently defendant's counsel had inadvertently produced 165 electronically stored privileged documents.

As described, the saga involved defendant's counsel first negotiating a clawback provision [this is something that should be SOP for everyone involved in large document productions - it is a money saver and a tremendous protective shield] but then deciding that they could review the documents and produce them without one [why they didn't do both is beyond me].  They purportedly did key word searches and somehow their searches failed to alert them to the 165 documents that were inadvertently produced.

The district court, quite rightly, held that this was not excusable inadvertence and held that they had waived their privilege.

Maybe defendant's counsel could have presented a fuller record as to how they were diligent, but the short of this is that - you can go out and pay big bucks to e-discovery software companies or pay for an additional layer of supposed e-discovery lawyers [every large firm seems to be creating one] in addition to your litigation counsel or you can do some simple things - like always demanding a clawback agreement.

Such an agreement provides that regardless of the question of inadvertence and whether it was excusable or not,  production of privilege material will not be waived if it comes to the attention of producing counsel that a privileged document has been produced and they timely request its return.  How simple can that be?  You are protected from your opponent ever introducing privileged materials that for whatever reason you fail to intercept in your initial production.

Finally, if you want to nip production of privileged documents in the bud actual review of the documents is a must - key word searches and expensive discovery software systems just don't cut it.  The case is Victor Stanley, Inc. v. Creative Pipe, Inc., et al., Case No. MJG-06-2662 (D. Md.) by the way.

ARE WE LAWYERS OR MBAs?

Click here to read an article that to me reflects much about the problems that confront our profession and the clients we serve. It discusses how a mega rainmaking litigation partner - purportedly bringing in $60 million in billings per year and the highest paid partner earning $5.75 million last year - was leaving  DLA  Piper to go in-house at Pfizer.  Those numbers were pretty impressive, so I decided to look at her bio.

My expectation was that she was an uber trial lawyer that attracted clients because of her stellar in court skills.  That may be the case, but if you read her bio you wouldn't know it. 

The bio is extensive.  It details all of the cases that she has "coordinated" and all the litigation teams that she has lead.   In its own right, it is quite impressive.  But not one mention of ever having been involved in the trial of a case let alone successfully trying a case.  The impression one gets is that she is a skilled case coordinator, legal strategist and leader of litigation teams. Click here if you want to read it.

Now I understand that defense lawyer's objectives are, quite rightly, to avoid trial at all costs and that as a result in some ways it is a badge of dishonor if you have to try a lot cases as a defense lawyer.  Perhaps Ms. Schulman has tried her fair share of cases and just didn't want to tout this in her bio.  But I doubt it.  Anyone who has tried and won cases before juries or judges would insist on this being included in their bio.  They are career benchmarks for true litigators/trial lawyers.

She is not the only one who I have seen with such a bio.  The managing litigation partner from a major firm who headed up the defense of a substantial antitrust matter that I recently litigated had a similar bio - touting all the cases he had successfully managed but not one mention of having ever tried a case.

Whether they have or have not tried cases is almost irrelevant, because the real question is where is the profession going when the people who lead litigation litigation matters tout their ability to "coordinate" large litigation teams rather than their abilities as in court lawyers?

My guess is that more and more litigation partners in large firms are no longer getting any trial experience because less and less cases get tried these days and, of course, throughout their developmental years success is measured in getting cases dismissed before trial.  So as they rise to the top of these firms, litigators' bios have morphed to touting "case management" skills.

Moreover,  this professed expertise in supposedly managing  large litigation teams is a canard. As I have repeatedly stated in this blog and in my published articles - large litigation team means a bloated inefficient and costly litigation team.  You want someone to efficiently manage a litigation matter? Get people who have litigated in the trenches and tried cases.  All the rest is expensive feel good fluff.

Those who know how to try cases are still the best at developing and implementing the best strategies for cases big and small.  The fact that the highest paid lawyer in the largest firm in the country either doesn't have this experience or consciously chooses to not tout her trial experience says more about where things have gone these days - at least in the big firms.

In-house counsel wail about litigation costs and the unreliability of our civil justice system.  Yet they only have themselves to blame when they swallow this "case management"  PR.  Sure the complex litigators clients hire should have the skills to manage big cases.  But the only way to really do this is to work in the trenches and actually try some big cases.  Without such experience one has no idea what is actually involved. Thus, clients would do better to hire lawyers who can and do tout their in-court prowess and not those who tout their case management skills.  The former is the best path to the latter.