Frequently, the most difficult yet important decision a company must make when dealing with new litigation occurs within the first 30 days of a lawsuit being filed. Specifically, a company must quickly decide which lawyer or law firm it will retain to represent it in the litigation. Not only is the time pressure of a responsive pleading deadline ticking, but the initial choice is frequently dispositive of the case.
There is a great deal riding on making the right decision. As anyone who has been involved in a lawsuit knows, a stronger trial attorney can make all the difference in the world. At Callahan & Blaine, PC, Managing Partner Edward Susolik has spent decades studying what separates the lawyers who win from those who simply know the law. To quote the Grail Knight’s message to Indiana Jones: “You must choose, but choose wisely.”
The Specialization Fallacy
As a fallback when choosing litigation counsel, many companies look for a “specialist” in the subject matter of the litigation. On the surface, such a choice would make sense, as these specialist lawyers have practiced for decades in a narrow subject area and thus know the rules, regulations, and laws in that field. Perhaps they have even written articles or given speeches on that area of law, giving them even more of a specialist aura.
To give one example of this phenomenon, Edward Susolik recently attended a business meeting where the president of a major Southern California company commented that there are only approximately ten law firms in the United States that specialize in franchise disputes in the field in which her company does business. She then told him that her company had lost every case they had litigated using these lawyers. She asked whether her company should choose from that same group of law firms to handle a new case that had just been filed.
The answer was a resounding no. Apart from the obvious need to change a process that is repeatedly failing, choosing litigation counsel based on specialization in a subject matter area is a fallacy and a red herring.
The Specialty of Winning
Rather than looking for a lawyer with a narrow specialization, businesses should look for an attorney whose specialty is winning cases at trial. The reality is that while there are hundreds of thousands of lawyers who call themselves “litigators,” a very small percentage are true “trial lawyers.”
It is these true trial lawyers that businesses should turn to when confronted with lawsuits or the need to engage in litigation. For example, if a business has a multi-million dollar litigation arising out of a complex lease transaction, it is not going to win or lose that lawsuit because its attorney knows all of the applicable laws and regulations regarding leases or holds themselves out as a real estate “specialist.”
The bottom line is that a true trial lawyer can efficiently and effectively learn virtually any specific subset of the law. At the end of the day, a case is won and lost because of an attorney’s talents and abilities in the courtroom, the deposition room, and ultimately at trial.
Why Specialization Alone Is Not Enough
A litigator who specializes in insurance law but cannot take a meaningful deposition is not a good advocate. Likewise, the “specialty litigator” who lacks trial experience or is unable to connect with a judge or jury during trial is ineffective when it matters most. Every lawsuit that is litigated must have as its ultimate goal how the facts and legal issues will be decided before a jury and a judge. If the “specialty litigator” is not a powerful trial attorney, the entire discovery, law and motion, deposition, and pre-trial phase will be handled in a mediocre and unpersuasive manner.
Perhaps most importantly, the opponent on the other side will feel no intimidation or pressure to settle with a weak legal adversary. Settlement is a powerful weapon in the arsenal of the trial lawyer. It is one of the true ironies of litigation that the best settlements come from lawyers who are experts at trial practice and have prepared their cases for trial. Edward Susolik has personally handled over 2,000 mediations in his career across our civil litigation practice and has successfully settled all but a tiny fraction of those cases.
A Checklist for Choosing the Lawyer Who Specializes in Winning
When an in-house counsel or business executive is choosing a litigator to handle a recently filed lawsuit, the ultimate criterion they should look for is the “specialty of winning.” The following are some of the critical factors to consider:
- Jury trial track record: Does the lawyer or law firm have a track record of conducting actual trials in front of a jury? A litigator who has never conducted a trial cannot be an effective advocate in the pre-trial and discovery phases.
- A record of winning: Does the litigator have a track record of winning cases and being successful? Look carefully at the lawyer’s record in handling complex cases. For example, Callahan & Blaine, PC obtained a $934 million jury verdict after a three-month trial in a complex business litigation matter, which is the largest jury verdict in Orange County history.
- Plaintiff and defense experience: Does the attorney have experience and expertise in handling both plaintiff and defense cases? A true litigator is not relegated to one perspective or point of view. A lawyer who is equally adept at both plaintiff and defense work is a very powerful resource, as that lawyer can understand the perspectives and mindsets of both sides of the litigation.
- Deposition expertise: Is the lawyer an expert in taking depositions? The testimony of a witness at deposition is what the witness must say at trial. A litigator who can conduct an aggressive, effective deposition of the adversary’s key witnesses and obtain major admissions is a powerful asset. A trial judge will not allow counsel to read a 100-word deposition answer to the jury, and the jury will not want to hear it anyway.
These are not abstract qualities. They are the standards that have defined our team of attorneys for more than 40 years.
Choose the Lawyers Who Specialize in Winning at Callahan & Blaine, PC
When a company faces litigation, rather than looking for a lawyer with a narrow specialization, in-house counsel should look for the lawyer who is an expert in the art and science of trials and who specializes in the one thing that matters most: winning. Edward Susolik has written and spoken extensively on this philosophy, and his record is featured in national media coverage of the firm’s most significant results.
If your company is facing litigation, we are ready to put our record to work for you. Contact Callahan & Blaine, PC today to speak with attorneys who prepare every matter for trial, because that preparation is exactly what delivers the best outcomes for our clients.
