Sunday, August 23, 2009

A Good Lawyer: Why Experience Matters

A conversation with a law student led to something coalescing in my mind about good lawyers. Experience matters when you hire a lawyer. I'm biased, but I think trial experience is critical. Of course it's most important when you need a trial lawyer. Even for other kinds of law, it can still matter. A good lawyer has to understand what happens when something goes to court.

When a new case comes in, a lot of lawyers just think about how they're going to settle. For criminal cases they think about how to get a good deal from the prosecutor. For personal injury they think about how to persuade the insurance company.

That kind of thinking may be fine for some cases, but you never know when the deal won't happen. What do you do for your client then?

When I get contacted about a new case, I start thinking right away about how I would present that case to a jury and how a jury would look at it. And right from the beginning I talk to the client about the whole process. That way the client knows what to expect and they're not surprised when it takes time.

There's some game theory in being a trial lawyer. It's not only how I'm going to present my case to a jury. It's often more about how the other side will present theirs, with some interaction between how you'd react to their story and their reaction to yours, etc.

In my criminal defense cases, sometimes you see a case where you know the prosecutor is going to have a tough time selling a jury on their story. One of my trials involved a DWI where the guy was sitting in his apartment parking lot listening to the radio with the engine running. Yes, technically under NY law, a judge might not dismiss it. But how does the prosecutor explain it to the jury? I know how I explained my side: "My client is charged with DRIVING while intoxicated. He wasn't DRIVING!"

The prosecutor in that case never figured out how to sell it (because it's an awfully hard sell) and the jury said "not guilty" - faster than usual. That case should have settled. My client, whose BAC was 0.32 (four times the legal limit - that's close to dead), would have taken a reduction to DWAI. But they wouldn't agree because his BAC was so high. How many lawyers would have taken that case expecting to settle and then not known what to do when the prosecutor said no? Many of them would have told the client to plead guilty to a DWI.

We have a case going right now where our disabled client was injured when someone else slammed a car door on him. It's a "good injury". I figured it would settle quick and easy. But the insurer made a lowball offer. There are plenty of lawyers who would sit on the case for three years, hoping the offer would get better, because they don't like filing suit. Or they'd tell their client to take the crappy offer. We sued it. If they're going to make an offer that low, there's no point in waiting.

Going beyond litigation, trial experience matters in other areas too. Suppose you need a lawyer to write a contract. What would a good lawyer think about when working on the contract language? It should be this: What will this language do in court if there's a problem? A lawyer with no court experience will have trouble answering that question. Maybe they read what appellate courts have said about similar situations (which is important too), but that's not the same as being in the trenches.

Whether it's contracts, wills, corporate formation, lobbying and more, it all comes down to how it will play in court if something blows up. It could even be tax shelters - how many UBS clients are wondering why their lawyers didn't tell them the bank could make a deal with the feds? A good lawyer thinks about those things in the course of their work, and explains it all to their clients.
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