The Qualities of a Great Business Litigation Lawyer

Frequently the most difficult yet important decision that a company must make when dealing with litigation occurs within the first 30 days of a lawsuit being filed. Specifically, a company must quickly decide which lawyer or law firm it will retain to represent it in the litigation.

There is a great deal riding on making the right decision. As anyone knows who has been involved in a lawsuit as a party, attorney or juror, a stronger and more experienced trial attorney can make all the difference in the world in the success or failure of litigation. To quote the Grail Knight’s message to Indiana Jones, “You must choose, but choose wisely.”

The secret to success in complex business litigation is to choose an attorney and law firm that has extensive trial experience. The reality is that while there are thousands of lawyers in Orange County who call themselves “litigators,” only a fraction are actually true “trial lawyers.” It is these true trial lawyers that businesses should turn to when confronted with lawsuits or the need to engage in litigation.

Moreover, business should resist the temptation to retain a “specialist” in the particular subject matter involved in the litigation. Superficially, such a choice would make sense, as these specialist lawyers have practiced for decades in this one narrow area and subject matter, and thus they know the rules, regulations and laws in that field. To even sophisticated business people, such a specialist would appear to be the lawyer most qualified to handle litigation in that particular subject area. As explained below, however, choosing litigation counsel based on specialization in a subject matter area is a fallacy and red herring.

A. Choosing the Right Lawyer: A Checklist for Choosing the Trial Lawyer Who Specializes in “Winning”

Ultimately, when a business or corporation is choosing a lawyer, the ultimate criteria and “litigation specialty” they should be looking for is to choose a “winner.” The following is a checklist of some of the critical factors to look for in selecting a “winning” litigator:

1. Does the lawyer or law firm have a track record of conducting actual trials in front of a jury? A litigator who has never conducted a trial cannot be an effective advocate in the pre-trial and discovery phases.

2. Does the litigator have a track record of winning cases and being successful? Look carefully at the lawyer’s record in trial in handling complex cases. This requires some significant due diligence, as a lawyer’s track record and history of conducting real and actual trials may be hard to find. For example, my law firm, Callahan & Blaine has won a $934 million jury verdict (after a three month trial) in the area of complex business litigation, which is the largest jury verdict in Orange County history.

3. Does the attorney have experience and expertise in handling both plaintiff and defense cases. A true litigator is not relegated to one perspective or one point of view. A lawyer who is equally adept at both plaintiff and defense work is a very powerful asset, as that lawyer is able to understand the perspective and mindset of both sides of the litigation. Moreover, many cases have both a complaint and cross-complaint, so the attorney must be able to wear both plaintiff and defense hats.

The major benefit of hiring attorneys who handle both plaintiff and defense cases is that the law firm and its lawyers gain invaluable experience and perspective into the plaintiff’s point of view when litigating a plaintiff case. The lawyer and the law firm can then put this extensive experience of knowing the plaintiff’s side to considerable benefit when acting as defense counsel. Moreover, using the adage that “the best defense is a good offense,” many times a strong cross-complaint can be a highly effective defensive strategy.

It is analogous to playing both offense and defense on a football team. The knowledge and perspective that a player learns from being on the defensive side of the ball is invaluable when the player is quarterback on the offense. It is the same in law. Whether it be law and motion, depositions, discovery, or trial, it is a huge benefit for defense counsel to have extensive experience from the plaintiff’s perspective.

By way of example, my firm, Callahan & Blaine, represents defendants in the majority of the hundreds of complex litigation matters that we handle every year. However, Callahan & Blaine also has extensive experience from the plaintiff’s side. As mentioned above, while acting as plaintiff’s counsel, Callahan & Blaine, obtained the highest plaintiff’s jury verdict in the history of Orange County, a $934 million jury verdict that was procured on behalf of corporate client Beckman Coulter after a three month trial in a complex business litigation matter. Likewise, by applying its complex litigation skills in the area of municipal liability, Callahan & Blaine obtained a $50 million settlement in a pedestrian accident that has been certified as the largest personal injury settlement in the history of the United States.

Thus, whenever Callahan & Blaine defends corporations in complex litigation matters, Callahan & Blaine is able to utilize its extensive experience from the plaintiff’s perspective in many different and positive ways.

4. Is the lawyer an expert in depositions and discovery, based on experience as a trial attorney? The testimony of a witness at deposition is what the witness must say at trial. Consequently, a litigator who is not able to conduct an aggressive and effective deposition is an ineffectual lawyer. The strongest and most effective way to learn these skills is to conduct actual trial, and learn how to exam and cross-exam witnesses effectively before a judge and jury. Likewise, document production, third party subpoenas, interrogatories and other discovery devices frequently make or break a case. Again, a true litigator becomes an expert in discovery by observing and experiencing how these discovery devices are used during trial and before a jury.

In conclusion, when a business becomes embroiled in a lawsuit, the legal specialty they should look for is the lawyer who is an expert in the art and science of trials and winning.