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What you should (and shouldn’t) ask your prospective trial lawyers

Top litigators explain what in-house counsel should focus on as they seek trial representation

When in-house lawyers are selecting outside counsel for litigation, they should focus on various traits of successful litigators, including credibility, civility, creativity and more.

In addition, asking certain questions can help determine whether prospective litigators would effectively represent their companies.

“Inside counsel should ask questions about working style,” says Gibson Dunn Partner Theodore Boutrous Jr., who last year represented Wal-Mart at the Supreme Court in Wal-Mart Stores Inc. v. Dukes. “Hands-on involvement is something I would want if I were the client. I’d want to make sure that the person I’m hiring to lead the litigation will be immersed and fully involved and really has that as a key aspect of their representation.”

Boutrous says in-house counsel also should ask about their prospective trial lawyers’ overarching theories about how to win the case. “That gives you a good sense of how they’re going to look at the case in general. I tend to want to have the person on my team who recognizes the difficulties but is thinking ahead immediately about how to solve them and how to win.”

Above all, there is one question in-house lawyers should refrain from asking their prospective trial lawyers, says Howard Scher, a shareholder at Buchanan Ingersoll & Rooney and a fellow of the American College of Trial Lawyers. “A question not to ask is, ‘What’s your won-lost record?’” he says.

Boutrous agrees. “It doesn’t tell you that much in terms of what type of cases a person has had,” he says. “Oftentimes, the very best trial lawyers are the ones who are getting hired because it’s the toughest case.” 

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