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What to Look for in a Trial Attorney

When describing lawyers, my Contracts professor in law school used to say, “You shouldn’t judge an entire profession by three or four hundred thousand bad apples.”[1] But with the bushels of bad apple lawyers, there are also many very good and conscientious attorneys who strive to do what is best for their client. So how do you find a good trial attorney who puts your interests above his or her billable hour requirement? Here are some general things to look for when searching for the right trial lawyer for you and your lawsuit.

Before I jump into some specific traits, let’s make it clear that any lawyer you hire must have at least two basic qualifications: competency and experience. This doesn’t mean your attorney had to go to an Ivy League school to get their degree. Rather, it means he or she must be persuasive and believable. There are lots of great attorneys without the shiny academic credentials who are as sharp as a tack in the courtroom—that’s who I want arguing for me if my company or good name is on the line. Additionally, nothing compares with actually having gone through several full trials. You want someone who has been in the trenches and knows what to expect, but can also react appropriately when the unexpected inevitably happens.

Assuming these bare minimums, first evaluate what kind of case you have. Is this a situation where you need to continue a business relationship after the lawsuit is over (with a supplier or a major tenant, for example), or have all ties been severed with the other side and you must win for your business to survive? Look at your case honestly from a business perspective because not all cases call for General Sherman’s March to the Sea during the Civil War—that kind of case is extremely expensive and, while you may get the satisfaction of burying your opposition, you will certainly end up with a bill to your lawyer for hundreds of thousands of dollars.

Not all trial lawyers are suited for the slash and burn lawsuit, either. By the same token, not all fire-breathing litigators have enough finesse to win your case without so angering the other side to still keep a necessary business relationship with the opposition after the dust has settled. You are the one who has to carry on the business after the lawyers are out of the picture, so you need to make an early decision as to what you want the relationship with the other side to be after the lawsuit is finished. Then hire the trial attorney with the disposition and skill set to get you there.

Second, make sure the lawyer’s personality doesn’t annoy you; after all, you are going to be dealing with this person for the next couple of years and shelling out tens of thousands of dollars so you need to hire someone you like—or at least tolerate. Litigation is contentious enough without feeling like you are fighting against your own attorney. You do not want someone who tries to bully you into taking positions or making arguments just for the lawyer’s entertainment. Remember: you hired the attorney; he or she works for you, not the other way around. I’m not saying you and the attorney have to start hanging out in each other’s social circles. I am saying that you are trusting your future to this person so find someone who respects you and your input.

An important subpart to this second point is trust. Find someone you trust, someone who will listen to your input and then tell you what you need to hear and not necessarily what you want to hear. Sometimes the strategy you want to take may not be in line with what the law or procedure allows. This is why you need an attorney with enough experience to tell you when something should or should not be done. You will be relying upon your counsel to help you out of your current predicament. Make sure you trust his or her advice.

Third, your lawyer should not make your dispute personal—especially in a commercial setting. Doing so takes away the objectivity he or she needs to represent you properly. Of course, you don’t want your trial attorney so unemotional that you are unsure if your interests are being protected. However, there is a fine line between taking a personal interest in a client’s case and making the client’s case the attorney’s personal mission. If you notice your lawyer is more focused on “sticking it” to the other side’s counsel rather than advancing your interests, you have a problem. Shakespeare correctly said, “And do as adversaries do in law, Strive mightily, but eat and drink as friends.”[2] Litigation is inherently full of conflict and tempers flare easily, but the dispute between your lawyer and opposing counsel must be kept professional and not turn into something personal.

Finally, any attorney you hire must remember that the law is a service profession. Lawyers are supposed to serve you when a problem has become too entangled to separate on your own. A trial attorney’s job is to see that your interests are protected in the most efficient and least expensive way possible; not to bill you for every last nickel. If your lawyer has forgotten the service aspect of this profession, you probably hired one of those bad apples and should look for new counsel.


Footnotes

[1] Professor James Gordon, J. Reuben Clark Law School at Brigham Young University, fall semester, 1995.

[2] The Taming of the Shrew, Act 1, scene 2. For a more humorous example, consider the relationship between Sam Sheepdog and Ralph E. Wolf in the classic Looney Tunes cartoon series. See, e.g., Double or Mutton (Warner Bros. Entertainment, 1955). They were friends before clocking in, ate lunch together, and were social after work, but during the workday, their goal was to defeat the other side. Importantly, neither one took the professional attacks personally.

The Difference Between Trial and Appellate Practice

By Craig LaChance

Suppose you have a case that went to trial, and you are facing an appeal. Either you lost and want to appeal the decision, or you won, but your opponent has vowed to appeal. In any event, the case is going to the next level. Should your trial lawyer handle the appeal? After all, your trial lawyer has worked on the case for months, perhaps years, and will know the facts and law intimately. In fact, your trial lawyer probably crafted many of the arguments that may be raised on appeal. What is more, having gone to battle with your trial counsel, you’re comfortable with them and trust their judgment. If your trial counsel has appellate experience, then having them handle the appeal may be advisable.[1]

But if they don’t do appeals, you want to consider counsel who specializes in them. Trial and appellate work are quite different. Being a great trial lawyer does not make one a great appellate advocate. As federal appellate judge Ruggero J. Aldisert notes, a successful trial lawyer is a salesperson whose objective is to persuade a panel of lay jurors that their client’s witnesses are credible and that the facts favor their side.[2] Trial advocacy typically involves more than legal argument; it often involves emotional appeals to create a sense of righteousness. Much trial advocacy is verbal. Thus, argument is more fluid, organic, and less focused on analysis of legal concepts.
Always Be Closing
“The only thing you got in this world is what you can sell.” Arthur Miller, Death of a Salesman.

An appellate lawyer, on the other hand, “is still a salesperson, but the lawyer carries a different sample case.”[3] Instead of juries, the audience in an appeal is a panel of professional judges. Also, while trial argument is primarily verbal, appellate advocacy is generally written. Where a trial brief is typically less than 10 pages, appellate briefs often run to 30 pages or more. As Judge Aldisert notes, appellate advocacy is really a dialogue between professional writers (appellate attorneys) and professional readers (judges). To be sure, appellate lawyers present oral arguments, but these arguments are extremely circumscribed, often only 15 to 20 minutes; compare this with the days or even weeks a trial lawyer gets to make their case. Additionally, appellate work focuses on the law rather than facts. This results in often abstract arguments concerning policy, history, legislative intent and the analysis of legal concepts. Good appellate attorneys are often reflective, analytical and introverted—traits that are not often associated with the fireworks of a trial courtroom.

This is not to say that trial lawyers are not thoughtful or that appellate attorneys are shut-ins. Nor is it that trial lawyers cannot be successful appellate attorneys, or vice versa. Indeed, there is quite a bit of overlap in trial and appellate skills. The point is that the differences between trial and appellate practice are important and are a factor in successful appeals.

 


Footnotes

[1]  See Michael J. Meehan, “Appellate Advocacy,” in Arizona Appellate Handbook, vol. 1, §2.3, 2-4 (4th ed. 2010) (“If at all possible, every appeal should be done by a lawyer with appellate practice experience”).

[2]  Ruggero J. Aldisert, Winning on Appeal, 4 (NITA 1996).

[3]  Id. at 5.

Recovering Lost Profits by Avoiding Limitation of Liability Provisions

By Daniel Mestasz

Lost profits are often the largest component of damages in breach of contract cases. Limitation of liability provisions, however, typically preclude those damages and other consequential damages. These provisions are in many types of contracts, particularly service contracts, supply contracts, and contracts governed by the Uniform Commercial Code. If a client has been damaged by a breach, avoiding that provision can be critical.

Like a rock thrown into a pond, a single breach can ripple through a company’s operations and damage its other relationships. For example, where a supplier sold defective paint to a dealer, the court did not limit the damages to replacement paint. Rather, the dealer was entitled to the profits it would have made on the contracts cancelled by its contractor customers, as well as its lost goodwill. Isenberg v. Lemon, 84 Ariz. 340, 349–50, 327 P.2d 1016, 1022–23 (1958). Similarly, where a city breached a towing contract, the towing company was entitled to lost profits on the sale of parts from the abandoned cars it would have recovered, lost profits from towing services, and damages for lost goodwill. All Points Towing, Inc. v. City of Glendale, 153 Ariz. 115, 735 P.2d 145 (App. 1987). See also Short v. Riley,150 Ariz. 583, 585, 724 P.2d 1252, 1254 (App. 1986) (where defendant wrongfully withheld liquor license in connection with restaurant purchase, plaintiff was entitled to any lost profits while operating the restaurant without the license).

Thus, where a breach causes lost profits or other consequential damages, it is important to see if the contract has a limitation of liability provision. If it is there, Arizona law presents some options to avoid it.

First, a party who has breached a contract in bad faith may not rely on a limitation of liability clause in that contract. Airfreight Express Ltd. v. Evergreen Air Center, Inc., 215 Ariz. 103, 158 P.3d 232 (App. 2007).

In Airfreight Express, the defendant contracted to provide maintenance repairs on an airplane so that the plaintiff could perform under an air cargo contract with Air France. Following a settlement agreement that required the defendant to make repairs, the plaintiff sued for breach of contract, alleging that the defendant made faulty repairs for the purpose of letting its sister company appropriate the Air France cargo business from the plaintiff. The court reversed the trial court’s summary judgment ruling that a limited liability clause precluded the plaintiff from recovering lost profits that it would have earned under the air cargo contract.

The court held that a bad faith breach precludes reliance on a limited liability clause, as held by courts from other jurisdictions and consistent with Corbin, the Restatement, and Arizona law. Id., at 110–11, citing 15 Grace McLane Giesel, Corbin on Contracts § 85.18 at 471 (2003) (a limited liability provision “is not effective . . . if the party acts fraudulently or in bad faith”), Restatement (Second) of Contracts, § 195 (1981) (prohibiting contracts exempting parties from intentional or reckless tort liability), and A.R.S. § 47–2719(C) (“Consequential damages may be limited or excluded unless the limitations of exclusions is unconscionable.”). The court further explained that as “a matter of public policy, a party should not benefit from a bargain it performed in bad faith.” Id., at 111.

Second, under the U.C.C., and “[p]ursuant to A.R.S. § 47–2719(B), a limitations of damages clause in invalid ‘[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose.’” Nomo Agroindustiral Sa De CV v. Enza Zaden North America, Inc., 492 F.Supp.2d 1175, 1181 (D. Ariz. 2007), quoting A.R.S. § 47–2719(B). In Nomo, a tomato grower sued its seed dealer for lost profits after its plants died from a virus. The court held that under Section 2719(B) and (C), the dealer could not rely on a limitation of damages clause to limit damages to the purchase price of seeds because it failed of its essential purpose (2719(B)) and was unconscionable (2719(C)). The court reasoned that parties to a sales contract cannot disavow minimum adequate remedies, which would include lost profits for defective seeds that resulted in a lost growing season:

The comments to [Section 2719] state: ‘[I]t is of the very essence of a sales contact that at least minimum adequate remedies be available. If the parties intend to conclude a contract for sale within this Article they must accept the legal consequence that there be at least a fair quantum of remedy for a breach of the obligations or duties outlined in the contract.’ [citing comment 1] . . . A farmer’s lost growing season and the accompanying loss of expected profits due to defective seeds clearly is not compensated by simply replacing or refunding the price of the defective seeds.”

Id.

A limitation of liability provision may not be the end of the world for companies devastated by another’s breach. Defeating that provision may be the first step to recovering lost profits and other consequential damages.

Why Go To Mediation?

Any attorney that says your case is a “slam dunk” is either a liar or is too inexperienced to trust in court. Trials—especially in front of a jury as opposed to a judge—turn on many factors that are simply outside the control of the lawyer and the client. Fortunately, there are alternatives to the roll of the litigation dice. Mediation provides a willing client with at least three benefits: (1) a neutral view of your case from someone other than your lawyer who is financially invested in it; (2) the chance to tell your side of the story in a confidential setting; and (3) the opportunity to control the amount of money you either receive or have to pay without being subject to the whims of a jury. Perhaps the greatest benefit, though, is that a successful mediation puts an end to the financial costs and emotional toll that come with a lawsuit.

First, a mediator is either selected and paid by the parties or is appointed by the court to perform the service for free. Either way, a neutral mediator has no interest in the outcome of your dispute. This allows the mediator to tell you what he or she thinks about your case—warts and all. Your attorney may have glossed over some of those blemishes, or ignored them altogether, and tried to convince you that your case is worth a lot of money or that you don’t have any exposure to pay a large judgment. The mediator provides a neutral perspective of both the strengths and weaknesses of your case. Even if you don’t settle, that insight helps both you and your attorney prepare your case for trial.

Second, a mediation is a confidential proceeding; nothing said there can be used for or against you at trial. This gives you, as a client, the chance to say what you want without fear that it will be read back to you on the witness stand at trial. It also allows you to tell what happened without being muzzled by your attorney. Sometimes all a client wants is to tell someone their version of the story without it being filtered through the rules of evidence or the litigation tactics of counsel. A mediation provides that setting for you to say your peace.

A Civil ActionThird, remember the plaintiff’s attorney John Travolta played in the film A Civil Action?[1] When the jury went out to deliberate, the defense attorney, played by Robert Duvall, offered $20 million to settle the case. Travolta’s character refused. The jury came back and rendered a verdict against his clients giving them nothing. An analysis of the lawyer’s hubris in rejecting such an offer is beyond this scope of this blog. However, I raise the movie to point out that you don’t want to be so enamored with your case and think it is so valuable that you turn down a reasonable offer only to go to trial and walk away with nothing. Mediation allows the parties to put a value on how much each side is willing to accept or to pay to resolve the dispute instead of continuing with the litigation fight.

Some people think of mediation as a touchy-feely-let’s-all-sit-around-the-campfire-holding-hands-and-sing-Kumbaya kind of experience. Not so. It’s actually a chance for you to get a neutral observer’s take on your case, it allows you to vent without being “on the record” for the things you say, and it lets you decide how much your case is worth. Most importantly, though, a successful mediation stops the litigation and lets you move on to bigger and better things in life.


Footnotes

[1] A Civil Action (Touchstone Pictures 1998).

Discovery in Commercial Cases

By Daryl Williams

Discovery in commercial cases, which is all I do, has always been a problem. Before computers and electronically stored information, ESI in lawyer-speak, the issue was being taken to a warehouse full of closed files where you could spend days and weeks looking through banker’s boxes, the producing party saying, “The documents are in there somewhere and the burden and expense for you to find them is the same or less than the expense of us finding them.”

ESI has not made this easier; indeed, the discovery burden is greater because of the volume and complexity associated with looking at the electronic documents and the potential for sanctions if you do not preserve ESI. We handle this internally by getting images of our own client’s computers, which is not very expensive, so that we cannot be accused of not having the ESI if a discovery dispute arises. We have the snapshot. We can then process our client’s records using an internal program that de-dupes and deNISTs the client files; deNISTing involves identification of standard files, like program files, that have nothing to do with data. We can, then, pare the data files down to something manageable with statistical analysis of who is involved in email chains, document revisions, etc. We save the client tens-of-thousands of dollars doing this in-house rather than sending it out to a vendor.

Eventually, though, someone has to put eyes on the images, and the client’s input is essential so you are not engaged in a rock-turning exercise. The client needs to direct the lawyer to the rocks covering the worms needed to go fishing—go to trial. Otherwise, you are turning over rocks in the field of discovery with no more of a plan than turning over every rock in the field to find every worm. The client can give guidance, like describing the wet side of the field where the worms are. It is very expensive to just turn over every rock. The trial lawyer needs to feel comfortable knowing he has enough worms in his can to go fishing even though he has not turned over every rock. Too many lawyers spend all their time rock turning without going to trial. The object is going to trial, i.e. fishing with enough bait to catch your fish.

I also think you need to be careful about spending to much time looking at your client’s or the other side’s computer. We get images of the other side’s computers, of course, and do our own internal de-duplication and de-NISTing and paring, but the client usually knows where to look for worms on its own computer and the other side’s computer. For example, just looking at a particular date range can be very helpful and limits the rock-turning time. Likewise, a subpoena to a third party can turn up a document not produced by the other side, resulting in a narrowly targeted review of the computer if the document is important enough. Is that document important enough?

Many firms tend to put baby lawyers into the field of discovery where they are engaged in prolix rock-turning. The big client being represented by the big firm is slow to realize that the work can be done more efficiently, mistaking the size of the firm and the number of lawyers engaged in rock turning for the quality of representation. Computers make a small firm with expertise equal to the big firm with manpower; after all, it is just one lawyer who stands up and talks in the courtroom.