Chapter § 2.03 Counsel and Budgets

• Jurisdiction: United States
• Publication year: 2020

§ 2.03 Counsel and Budgets

[1] Selecting Counsel

One of the most important decisions for any plaintiff is the selection of the trial attorney. Although the ultimate selection will depend upon a variety of factors, two factors should be considered of paramount importance when making the decision: (1) the actual trial skills of the lawyer and (2) the chemistry between the lawyer and the client. The retention of a skilled trial lawyer is essential, because, should the case proceed to trial, artful advocacy can make the difference between winning and losing. “Chemistry” is important because litigation requires difficult judgment calls. More specifically, good chemistry between the lawyer and the client is essential for an efficient functioning of the relationship and the lawsuit.

Lawyers have differing backgrounds and skills. The most subtle but important distinction is that between the “litigator” and the “trial lawyer.” The litigator has mastered the myriad of rules and discovery techniques necessary to prepare for a trial, whereas the trial lawyer has mastered the art of courtroom advocacy. While this distinction may seem unnecessarily fine, when selecting trial counsel for a significant, complex matter, a plaintiff should assume that the case will be resolved in a jury trial and, finally, on appeal.

One standard method used by many entities involved in complex litigation to assist in selecting trial counsel is what is informally known as a “beauty contest.” Potential plaintiffs meet with prospective attorneys to discuss, among other things, the attorneys’ trial experience, their proposed strategy for the plaintiffs’ cases, the plaintiffs’ business objectives for the litigation and the attorneys’ estimate of litigation costs. The fine line that demarcates the attorney-client relationship must be carefully observed during these meetings, and counsel should address this issue immediately, thus avoiding rendering legal advice until the attorney-client relationship has been established. More specifically, attorneys should not accept any confidential or privileged information from the prospective client unless retention is likely. That said, lawyers do owe a duty to prospective clients when “no client-lawyer relationship ensues.”⁸ The ABA Model Rules of Professional Conduct provide that lawyers shall not “use or reveal” information they learned from a prospective client, with limited exceptions.⁹ Individual states have adopted their own rules that are similar...