Litigation: 6 guiding principles for trial lawyers

Rules, tools and the essential elements of success

If you’ve paid any attention at all to the articles I’ve written over the past few months, you might have noticed that I have some pretty strong opinions about the practice of law, and trial practice in particular. But that’s only because helping clients resolve disputes, especially involving complicated and difficult matters is something I’m extremely passionate about. I believe that being a truly successful trial lawyer is about more than having a sterling record of case wins. It requires having a fundamental belief in the adversary system, an unwavering tenacious commitment to the pursuit of justice and trial advocacy skills. After that, success as a litigator and an advocate boils down to having a clear set of operating principles 

They may not write them down anywhere, but every trial lawyer develops their own set of beliefs and strategies over time. I’m certainly not the foremost legal expert on the planet. I only know what has worked for me and what I’ve observed and learned over the course of my career. Admittedly, every individual brings their own set of beliefs and biases to the practice of law. These are the principles that help guide me.

1. Client’s interest is paramount

The overarching principle I’ve always followed is to keep my clients’ best interests at the forefront at all times. Not fees. Not my ego or reputation. Nothing else. Just advocacy on behalf of a client.

2. Focus on the facts

Contrary to what some pop culture depictions of lawyers might have you believe, successful litigation is not built on trickery; it’s built on facts. Effective trial lawyers don’t win cases by playing strategic cat-and-mouse games with their opponents. They win by analyzing the facts and presenting those facts in the strongest way possible.

While there are legitimate reasons for trial lawyers to file motions to dismiss evidence, by and large, cases are decided on the basis of facts admitted, not facts excluded. Sometimes a motion to exclude evidence or even end a case will succeed, but it can’t be your reflexive strategy for winning a case. To borrow a sports axiom, this is “playing not to lose, rather than playing to win.” The truth is that the best defense is a good offense. Clients want someone who will fight for them, not someone who will back down from a fight. By aggressively analyzing the facts to craft arguments, a litigator demonstrates strength, prepares more effectively for trial and is more likely to come out on the winning side.

3. Act on reason, not fear

In a previous entry, I discussed occasions when a settlement could be worse than a bad trial result. What was implied, but not stated is that the fear of going to trial drives many settlements. There’s a reason why the old adage of cases being settled on the courthouse steps holds true. As the prospect of facing the jury gets closer, too often doubt creeps into the decision-making process and anxiety is inevitable. That’s why it is a litigator’s job to be the voice of reason for their client. A true advocate will act in the best interest of their client, not themselves. If that means settling the case, so be it. But if it means going to trial, it’s a litigator’s duty to find ways to push the case forward and to have no fear.

4. A trial is a right, not a privilege

This isn’t really my principle—it’s established by the U.S. Constitution. But it’s important for clients to remember this fact. Often, the court of public opinion has made its decisions about the guilt, innocence or culpability of participants well before trial begins. The media tends to use convenient stereotypes to classify defendants and plaintiffs. It often has made its own final verdict before the ink is dry on the court filing. Big bad corporation X must be guilty in this product liability case. Underprivileged plaintiff Y is only in this for the money. These kinds of classifications can scare clients away from taking their case to court. But thankfully, the actual court system does not base its decisions on public opinion. A litigator must remind their clients and themselves of this in every case. The system can work.

5. Collaboration is key

Our legal system works the best when all participants in a court proceeding work together. Yes, attorneys on opposing sides of a case vigorously argue against each other. But as anyone with a keen understanding of how the legal process works knows, the arguments made in court are only a part of what goes into resolving a case. There are an enormous number of areas, in which you must work together with your opponent and the judge to have success. They aren’t there to be your friend, but they can easily become your enemy if you attempt to deceive them or undermine their authority in the courtroom. Some litigators have no problem making enemies, but “Rambo” tactics don’t serve clients as much as they create a spectacle. 

6. Enjoy the ride

If you hate speaking in front of judges and juries, avoid going to trial at all costs and only care about tallying wins, you shouldn’t be a litigator. Going to trial should be the most fulfilling part of the experience. It’s the payoff for the hours spent analyzing evidence, taking depositions and preparing your arguments. If you don’t have some fun along the way, try a different profession. You can’t advocate for a client if you don’t have passion for what you’re doing. Clients will always know if someone isn’t giving it their all. 

Conclusion

If you can’t tell from reading my entries in this series, I’m passionate about what I do. These might not be everyone’s principles, but they are certainly the ones I try to live by. They dictate how I practice law and how I serve my clients. I’m sure others with equally compelling arguments might have a different opinion. If I’ve learned one thing as a litigator, it’s that there is always two sides to an argument. In closing, I shall simply leave you with these words. They summarize why I believe it is so important to stand by these principles of litigation. While they may be from a fictional trial attorney, there’s no fiction in them.

“I’m no idealist to believe firmly in the integrity of our courts and of our jury system. That’s no ideal to me. That is a living working reality!”

Atticus Finch—To Kill A Mockingbird, 1962 

Contributing Author

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Howard Scher

Howard Scher is co-managing shareholder of Buchanan Ingersoll & Rooney's Philadelphia office and is a former member of the firm's Board of Directors. With experience acquired in...

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