As discussed in a previous post, pursuing litigation is one of the hardest decisions a company’s executives and inside counsel ever make. Then comes probably the second most difficult decision: choosing a lead trial counsel and trusting them to present a case in a way that is aligned with company goals and priorities. After all, this individual will be the face of the company seen by the judge, jury, and even the general public if the case garners media attention. That lawyer also will be a key source of information for the company as the case progresses in terms of how it is proceeding, where the company stands, and the likelihood of a win. It is important, therefore, to choose a trial counsel based not only on experience, but also how they will work with company executives and in-house counsel throughout the case.
These are some avenues company executives and in-house counsel often pursue to ensure the lead trial lawyer they have chosen handles the case with the business’s best interests top of mind.
- Companies that are successful at trial arm their lead counsel, once selected, with all the information he or she will need regarding not only the case at hand, but also the company, its history, and relevant strategic and operational information. The deeper the trial lawyer’s knowledge, the better he or she will be able to align the case with the company’s overall goals. More importantly, it will inform how the trial lawyer presents the case to the judge and jury.
- Executives and in-house counsel often find it helpful to review a detailed pre-trial report from the trial lawyer regarding the facts of the case, its strengths and weaknesses, and any witnesses who will be called. It should also include detailed information as to how the trial lawyer intends to present the case at trial. This allows company representatives to give clear directives to the trial lawyer regarding how they want the case to unfold from their point of view.
- For some companies, the pre-trial report is just a start, and they prefer to then hold conference calls or in-person meetings to discuss every aspect of the case, from evidentiary and discovery issues to specific trial strategies. This is probably the best way for company representatives to understand exactly what to expect, provide input, and gather information to relay to other stakeholders.
- It is not uncommon for companies to ask lead trial counsel to provide a video recording of planned opening statements so as to review the trial themes, the style of the trial lawyer, and what is being conveyed about the company. The video can be viewed by other stakeholders in the company to secure their input.
- Mock trials, even done on an impromptu basis, are also effective tools for assessing both trial counsel and the case he or she intends to present.
There are many things companies can do to ensure their choice in lead trial counsel is the right decision for their business objectives. By being open with trial counsel about goals and priorities, and providing input at every stage along the way, executives and in-house counsel ensure the case is handled the way they want.
This is for general information and is not intended to be and should not be taken as legal advice for any particular matter. It is not intended to and does not create any attorney-client relationship. The opinions expressed and any legal positions asserted in the article are those of the author and do not necessarily reflect the opinions or positions of Miles & Stockbridge P.C., its other lawyers, or InsideCounsel.