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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.

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).

Time Limitations in Restrictive Covenants for an Arizona Employment Contract

Employers often want to preclude former employees from going to work for competitors for a period of time after they part ways. They do so by including restrictions in an employment contract that the employee must sign as a condition of employment. While time restrictions are allowed, they must be carefully drafted.

“A restriction [in an employment contract] is unreasonable and thus will not be enforced: (1) if the restraint is greater than necessary to protect the employer’s legitimate interest; or (2) if that interest is outweighed by the hardship to the employee and the likely injury to the public.”1 “A restraint’s scope is defined by its duration and geographic area.”2 “The burden is on the employer to prove the extent of its protectable interests, and if it cannot, the entire covenant will be deemed unenforceable.”3

An employment contract will often contain a “step-down” provision in the time limitation. For example, “employee shall not engage in similar work for a period of 18 months after termination or, alternatively, if a court finds 18 months to be unreasonable, then for a period of 12 months after termination or, alternatively, if a court finds 12 months to be unreasonable, then for a period of 9 months after termination or, alternatively, if a court finds 9 months to be unreasonable, then for a period of 6 months after termination.”

A step-down provision like the one above is an acceptable way to limit time restrictions to a reasonable term because Arizona courts can use the “blue pencil rule” to eliminate unreasonable provisions from an otherwise enforceable employment contract. However, courts are specifically prohibited from adding terms or rewriting provisions.4 If a step-down provision exists in an employment contract, an Arizona court can strike out the unreasonable portions and leave in what it deems to be reasonable because the parties already agreed to such a time restriction.5

However, employers cannot get cute in the agreement and just say, “whatever a court deems reasonable is what we agree to.” That is an unenforceable time limitation because there is no agreement. In Varsity Gold, Inc. v. Porzio,6 the parties had a such a clause in their employment contract so the court tried to write-in what it thought were reasonable restrictions.7 The court of appeals reversed citing to Farber’s prohibition against a trial court adding to or modifying the parties’ employment contract.8 The blue-pencil rule only allows the court to eliminate unreasonable provisions; it does not allow a court to write-in provisions it believes are reasonable.

If you have questions about whether your employment contract is enforceable, contact one of the attorneys at BWG.


1 Valley Med. Specialists v. Farber, 194 Ariz. 363, 369, ¶ 20, 982 P.2d 1277, 1283 (1999).

2 Id. at 370, ¶ 25, 982 P.2d at 1284.

3 Compass Bank v. Hartley, 430 F.Supp. 2d 973, 979 (D. Ariz. 2006).

4 Farber, 194 Ariz. at 372, ¶ 31, 982 P.2d at 1286.

5 Compass Bank, 430 F.Supp. 2d at at 980–81.

6 202 Ariz. 355, 45 P.3d 352 (App. 2002).

7 Id. at 356–57, ¶¶ 4 and 7, 45 P.3d at 353–54.

8 Id. at 358–59, ¶¶ 16–17, 45 P.2d 355–56.