Consult with your potential trial attorney early, and let them get started doing what they do. If you are going to part with a third of your fee anyway, you might as well get the benefit of their input early. Here are a few things they do, that you may not:
1. Bring in an expert witness on liability. You may have been thinking "maybe I will....at some point....", but if a trial attorney tells me we need an engineer, or an accident reconstructionist, it's a no-brainer.
2. Make sure you are ready to try the case on damages. This means you have a doctor who can testify, that all exchanges have been made, that subpoenas are prepared and served, and that there are no evidence "problems" that you may not realize.
3. Is your liability theory viable and legally sustainable? A trial attorney once told me that on his own cases, and on new files he picks up for trial, after hearing the basic facts he starts thinking about the PJI (Pattern Jury Instructions) for the case. Most non-trial lawyers think about that last, if at all.
4. Another trial lawyer told me that the first thing he reads in a new file he receives for trial is the plaintiffs deposition. What testimony are we "locked into", and where might there be some flexibility. What issues are the defendants thinking are problems? Incidentally, this same trial lawyer told me he is amazed at how many plaintiff cases are ruined by a poor plaintiffs deposition (more on this tomorrow).
5. Do you need to supplement the Bill of Particulars so ALL damages are included in the case?
6. In a motor vehicle soft tissue injury case, how will the New York "serious injury" threshold be met? This can be a make or break issue in the case, and should not be something that the trial attorney and client are first talking about in the hallway during trial....and I have seen this happen.
7. Have we confirmed the insurance limits. Can the carriers be placed in position for a possible excess verdict? Can pressure be brought on this issue?
I recommend having a working relationship with more than one trial attorney or firm. You may find that some firms are particularly good at certain cases. You can even run a particular case by more than one firm, and see who is enthusiastic about it, or who has an approach that excites you. Some firms are stronger in one venue than another. You can and should consider this.
Remember, bringing in trial counsel is not a negative reflection on your abilities. You will end up being a hero, you will make more money, and you will learn to prep your files better and better with each case.
Showing posts with label Trial Counsel Economics. Show all posts
Showing posts with label Trial Counsel Economics. Show all posts
Friday, January 19, 2007
Wednesday, January 17, 2007
Economics of trial counsel, Part 1
Many firms who handle plaintiffs cases don't try the cases themselves. Not everybody knows how, some don't want to do it anymore, sometimes the "trial guy" has left the firm, and sometimes there are unsolvable calendar conflicts. What considerations should go into employing outside trial counsel?
Why? Some cases have to be tried because the offer is zero or near zero, or because a liability verdict must be taken before an offer will be made (this applies in bifurcated trial jurisdictions, unified trials have different issues). Most cases reach their maximum settlement value at the time of trial. Not at the last "pre-trial conference", but when the carrier knows the trial IS actually happening and the plaintiffs are proceeding. This might be during jury selection, or right after, or when assigned to a trial part, or after opening, or after some plaintiff testimony. Whenever the exact time is for a partiular case, the biggest single jump in value is some time after the "trial" starts. I put that in quotes because to me, the trial starts when the attorney who is trying the case is in Court selecting a jury. It is often tempting for the attorney of record to hang in as long as possible and settle the case at the last moment before he'd have to either try the case himself or get a trial lawyer in there. We all know why attorneys do this.....to avoid that "turning point". The point where they are giving up a third (or more) of the fee. Waiting like this is a big mistake.....let me count the ways:
1. The good trial attorneys may not accept the case at this late juncture (more on this in Part 2), or the attorney you want may not be available.
2. You may have overlooked something a trial attorney would have done to maximize the value, and now it's too late.
3. You may spring this on the client so late, and so ineptly, that the client does not have confidence in your trial attorney.
4. You may think you have maximized the settlement, when you don't know how much better the trial attorney would have settled for, AND THEN, your client refuses to accept the offer.
5. You develop a reputation as someone who doesn't try his cases (or bring in trial counsel), and your offers reflect this.
It is true that sometimes the attorney of record will net less of a fee after the trial counsel comes in. Simple example: You had an offer of $15,000, so a fee of $5000 was yours, with $10,000 to the client (putting aside disbursements). You bring in trial counsel and settle the case for $18,000, with fees of $4000 to you, $2000 to trial counsel and $12,000 to the client. So, the client did $2000 better and you did $1000 worse. But the thing is, this is the RIGHT way to do things, and WAY more often, the trial attorney boosts that $15,000 to offer to $45,000, and you and the client both benefit.
Of course, trial counsel is able to do this when you bring them in early enough to help you....
Why? Some cases have to be tried because the offer is zero or near zero, or because a liability verdict must be taken before an offer will be made (this applies in bifurcated trial jurisdictions, unified trials have different issues). Most cases reach their maximum settlement value at the time of trial. Not at the last "pre-trial conference", but when the carrier knows the trial IS actually happening and the plaintiffs are proceeding. This might be during jury selection, or right after, or when assigned to a trial part, or after opening, or after some plaintiff testimony. Whenever the exact time is for a partiular case, the biggest single jump in value is some time after the "trial" starts. I put that in quotes because to me, the trial starts when the attorney who is trying the case is in Court selecting a jury. It is often tempting for the attorney of record to hang in as long as possible and settle the case at the last moment before he'd have to either try the case himself or get a trial lawyer in there. We all know why attorneys do this.....to avoid that "turning point". The point where they are giving up a third (or more) of the fee. Waiting like this is a big mistake.....let me count the ways:
1. The good trial attorneys may not accept the case at this late juncture (more on this in Part 2), or the attorney you want may not be available.
2. You may have overlooked something a trial attorney would have done to maximize the value, and now it's too late.
3. You may spring this on the client so late, and so ineptly, that the client does not have confidence in your trial attorney.
4. You may think you have maximized the settlement, when you don't know how much better the trial attorney would have settled for, AND THEN, your client refuses to accept the offer.
5. You develop a reputation as someone who doesn't try his cases (or bring in trial counsel), and your offers reflect this.
It is true that sometimes the attorney of record will net less of a fee after the trial counsel comes in. Simple example: You had an offer of $15,000, so a fee of $5000 was yours, with $10,000 to the client (putting aside disbursements). You bring in trial counsel and settle the case for $18,000, with fees of $4000 to you, $2000 to trial counsel and $12,000 to the client. So, the client did $2000 better and you did $1000 worse. But the thing is, this is the RIGHT way to do things, and WAY more often, the trial attorney boosts that $15,000 to offer to $45,000, and you and the client both benefit.
Of course, trial counsel is able to do this when you bring them in early enough to help you....
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