Friday, January 19, 2007

Economics of Trial Counsel, Part 2

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 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.

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