External Trial Counsel
Phillips Lex acts as trial counsel in the United States for foreign clients, often at the instruction of their foreign counsel.
In the US, the legal profession is not expressly divided into barristers and solicitors, as is the case in the UK or Australia, for example. But when it comes to litigation, there is a de facto distinction between litigators and trial lawyers. All trial lawyers are litigators, while very few litigators are trial lawyers.
Typically, litigators are lawyers who handle the various stages of pretrial litigation, from initiation of a lawsuit up until trial. Most commercial litigators have little experience with trial itself, because the great majority of cases settle before trial.
The Role of Trial Counsel
Trial lawyers are those rare lawyers who have the experience and skills to conduct jury trials. Trial lawyers know how to pick a jury, cross-examine witnesses, and present closing arguments – skills which many litigators lack simply because they seldom go to trial. Similar to barristers, trial lawyers know how to captivate their audience and “work” the courtroom.
The role of a trial lawyer is not limited to trying cases before judges or juries. On the contrary, trial lawyers are trained to conduct all phases of pretrial litigation, and they do so routinely. Moreover, trial lawyers are far better equipped to litigate through the pretrial stages than their litigator counterparts, because trial lawyers know how the ultimate contest is fought at trial. They have a deeper understanding of what evidence to collect in pretrial stages, and how it will be used in trial. Trial lawyers can narrow their focus – and the legal fees – to the critical issues and evidence needed to win at trial.
Advantages of Trial Counsel During Pretrial Litigation
In the US, the key purpose of litigation prior to trial is singular: to prepare a case for trial. Litigators who have minimal trial experience cannot prepare a case for trial as effectively or as efficiently as trial lawyers, because litigators lack familiarity with the strategies and tactics of trial. Trial lawyers thus provide clients with many advantages over their litigator counterparts during pretrial litigation:
Trial lawyers avoid unnecessary work (e.g., document discovery and motion practice) and legal fees on issues that are unimportant for trial;
Trial lawyers won’t make arguments during the pretrial stages that compromise the trial position;
Trial lawyers know what information needs to be collected for trial;
Trial lawyers know what questions to ask in depositions and interrogatories to get the information needed for trial;
Trial lawyers manage their expert witnesses to better protect them for trial;
Trial lawyers are better able to cross-examine opposing experts at deposition and obtain damaging admissions.
Trial Counsel Improves Settlement Chances
In the US, trial lawyers have a better chance of attaining desirable pretrial settlements for their clients. Hiring a trial lawyer sends a strong message to the adversary that one is willing and able to fight – even if it means trial. The adversary is now forced to approach settlement negotiations very seriously, knowing that any unreasonableness will simply lead to trial.
There is always a better chance of obtaining a favorable settlement when negotiating from a position of strength – and nothing shows strength like the hiring of trial counsel.
Phillips Lex is a trial law firm. We act as US trial counsel for foreign law firms and their clients. In this regard, Phillips Lex performs a similar role to barristers in the UK and Australia. We litigate cases from inception though trial, with or without instruction from overseas counsel.