Today, being a litigator is far more than being a “trial lawyer.” Less than three percent of civil cases filed in court end up going to trial. The remainder are settled or dismissed.
Causes of the decline in trials include the growth of alternative dispute resolution (ADR) and the influence of discovery upon settlement. ADR refers to mechanisms to resolve disputes other than through traditional litigation, which include arbitration, mediation, and negotiation. Discovery is the pretrial phase of a lawsuit during which litigants can obtain evidence from the opposing party.
Traditional civil litigation is a publicly funded, state-sanctioned means to resolve disputes. Although there are examples of lawyers drumming up litigation, the vast majority of civil cases involve real and legitimate disputes, typically between private parties.
Disputes arise in a multitude of different contexts; occasions for conflict arise whenever people interact. Rather than have individuals seek justice on their own terms, there are civil courts to resolve these disputes (or facilitate their resolution).
For the most part, one cannot choose between a practice in civil litigation and one in ADR. In Texas and numerous other states, courts routinely refer many cases filed in the civil courts to some type of ADR. In some counties, all cases within a certain category (such as custody disputes) are, by local rule, automatically referred to mediation.
Moreover, contracts may mandate that parties arbitrate their dispute or require the parties to attempt to resolve their dispute through mediation before going to court. Additionally, negotiations between parties often take place formally and informally against the backdrop of a prospective or pending court case. As a result, those practicing civil litigation will likely need to employ numerous dispute resolution processes both in and out of the courtroom.
Types of ADR
There are a variety of ways to resolve disputes that fall under the rubric of ADR. The most fundamental divide within the ADR umbrella is between systems where a decision maker’s determination is binding and processes that attempt to help the parties find their own solution.
Arbitration is frequently agreed to in a contract in advance of any dispute. The system functions much like a privatized court system, with the parties hiring a private “judge” (the arbitrator) to resolve their dispute. The parties present their evidence, including witness testimony, and their legal arguments to the arbitrator. The arbitrator then determines the result.
Arbitration results are enforceable in court, with very limited judicial review. Adjudicating before an arbitrator is generally quicker and less expensive than a jury trial, which is part of its attraction. Additionally, arbitration is also thought to be attractive to prospective defendants, since many believe that juries tend to make larger awards than arbitrators.
South Texas College of Law Houston’s Alternative Dispute Resolution survey course provides a general overview of the process, while the Arbitration course covers the process in greater depth. Additionally, although arbitrations are less formal than regular court proceedings, many of the skills taught in litigation classes will loosely translate to arbitration work.
Mediation is a confidential, informal process whereby a neutral third party helps facilitate a negotiated solution. Mediation does not impose a solution but instead aims to aid the parties in their attempts to settle the dispute without a formal court resolution. Parties can elect to try to resolve their dispute through mediation, or a court may force parties to try to resolve their dispute through mediation.
Mediators usually have experience in civil litigation; their backgrounds can help guide parties toward realistic solutions. The aim is not to impose a solution upon either party but instead to enable the parties to resolve the matter themselves. If the parties reach an agreement, the mediated settlement agreement can be submitted to the court and entered as an enforceable judgment.
South Texas College of Law Houston offers courses that cover the skills needed to effectively represent a client’s interest in front of a mediator, including the Alternative Dispute Resolution survey course, Mediation Practice, Mediation Theory & Practice, and Representation in Mediation. Although each of these classes is listed on the accompanying pathway, students certainly do not need to take them all to begin to develop the applicable skills.
Summary Jury Trial
In addition to mediation, other ADR measures have similar settlement-inducing functions. For instance, courts occasionally order mini-trials or summary jury trials. Each side presents a summarized version of its case to a panel of “jurors” who then render an advisory “verdict.” The hope is that the parties can better estimate the value of the case and thereby reach a settlement. The litigation coursework discussed below applies to the summary jury trial process as well.
Since most cases settle before trial, litigators must be able to successfully negotiate resolutions. This requires fortitude in persisting in your demands, the ability to discern what is more important to your client and less important to the opponent, and an understanding of the negotiation tactics most likely to obtain an outcome that maximizes your client’s interests. Many of the skills applicable to representing a client in mediation apply to negotiations as well, but the absence of a facilitator does change the calculus.
STCL Houston offers coursework specifically geared to negotiation skills; in addition to a Negotiation class, Representation in Mediation focuses heavily on negotiation skills, and the Alternative Dispute Resolution survey class covers negotiations as well.
Litigation Stages and Skills
Cases formally commence when a party files a complaint; the opposing party then answers the complaint. The Civil Pretrial Advocacy course addresses how to draft and file these pleadings. After a lawsuit commences, attorneys must understand and be prepared to deal with all aspects of the litigation process. The relevant stages, skills, and knowledge base will each be reviewed.
If litigators do not typically try many cases, what do they do? In addition to (and sometimes concurrent with) the ADR mechanisms outlined above, a great deal of time is spent on discovery. The discovery process is not a sideshow; it is the main event in most cases. Since few cases go to trial and most settle, “winning” a case is often about obtaining a favorable settlement.
Effective discovery can help a client get a relatively better outcome. If key documents are found that strengthen one’s case or if a witness during a deposition makes helpful admissions, the case will settle on more favorable terms.
Even if no settlement occurs, many cases end in a summary judgment. Discovery sets up a party to make or resist a summary judgment motion. As a result of the central role of discovery, many hours of a litigator’s life will be spent seeking and reviewing produced documents; propounding, objecting to, and answering interrogatories; and taking and defending depositions.
Coursework that covers the discovery process and relevant skills include Civil Procedure, Civil Pretrial Advocacy, Texas Pretrial Procedure, and Deposition Skills.
As noted above, many cases are decided on summary judgment motions, but there are numerous other motions that can be filed throughout discovery, during a trial, and even after a court renders judgment. Accordingly, successful litigators must develop solid persuasive writing skills. Additionally, litigators sometimes provide oral argument for their motions before a trial judge. Courses that cover relevant motions practice include Civil Pretrial Advocacy and Civil Trial Advocacy.
While most cases do not go to trial, litigators must approach a case with the mindset that it will not settle. Trial attorneys typically must be prepared to select juries, give opening and closing statements, examine witnesses, listen attentively, and adapt on the fly to any unanticipated events.
One should not assume that trial advocacy is an insignificant part of the litigation process simply because few cases end up going to trial. To the contrary, attorneys who excel in trial advocacy can develop greater leverage during settlement discussions because of their reputation as an outstanding advocate.
It should be noted that some litigators obtain outside counsel to first chair cases that proceed to trial. Conversely, other attorneys choose to specialize in trial work; they are not retained until it appears fairly certain that a trial will take place. Courses that address trial advocacy practice and skills include Civil Trial Advocacy, Mock Trial Litigation, Family Law Trial Advocacy, and Mock Trial Competition.
Knowledge of Procedure and Rules of Evidence
Litigators must have a firm grasp of the evidentiary and procedural rules of state and federal courts, although some attorneys practice predominantly in either state or federal court. Knowing procedural rules may or may not win cases, but a lack of knowledge of procedural rules certainly loses them. An abstract understanding of the rules is not enough; the imagination to see how to leverage these rules can optimize the outcome for a client.
Forum shopping is often an essential shaper of the settlement value of the case. A good forum shopper, however, must understand the law of personal jurisdiction, subject matter jurisdiction, and venue. Likewise, knowing what information is discoverable—not just what the rules say is within the scope of discovery, but what a judge is likely to allow—gives a litigator an advantage.
Courses that help facilitate these skills and knowledge include Evidence, Civil Procedure, Conflict of Laws, Texas Pretrial Procedure, and Texas Trial & Appellate Procedure.
Some trial attorneys will occasionally file appeals. A small number of attorneys choose to specialize solely in appellate practice—though usually not at the beginning of their litigation careers. Such attorneys must become familiar with appellate procedure, brief writing, and oral advocacy. Relevant coursework includes Appellate Advocacy and Texas Trial & Appellate Procedure.
Common Traits of Successful Civil Litigators
Enjoys Feet to the Fire
Who enjoys being a litigator? A metaphor explains it best. If you were a physician, would you prefer to be a pediatrician or work in an emergency room? Some people, like a pediatrician, attempt to plan ahead and make sure nothing goes wrong. They seek to maximize health with plenty of time to achieve the best result. In the law, these people are roughly analogous to transactional lawyers. They attempt to look ahead calmly and achieve an optimal solution for their client.
But in the emergency room, on the other hand, any thought of optimal solutions and ultimate good health is out of the question. In the emergency room, the question is whether the patient will survive the next hours or days. Any survival is rated a good result. It is only a mild exaggeration to compare litigators to emergency room physicians. By the time a matter gets into litigation, something has already gone seriously wrong. An individual has suffered personal injuries or was fired from his or her job, or two businesses have fallen into a serious dispute that has ruptured their relationship.
Litigators deal with a situation that is already bad and try to obtain the least bad outcome for their client. If you think you want to be a litigator, ask yourself how you feel about operating in an environment where there are frequent crises.
Learning on the Job
While some do choose highly specialized areas, litigators often need to be able to learn new subject matters. If you are representing a business in a dispute, you will need to learn about that business. For example, if you are representing a company in a lawsuit about an allegedly poor quality of coal, you will need to learn at least a little about the coal industry. If you are representing a client in a commercial dispute about online services, you will need to learn something about that industry. And if you are representing a client in a personal injury products liability case, you will need to become knowledgeable about the product in question.
In addition, you will also be learning new areas of the law as the subject matter of the dispute changes. Litigators need to have an adaptable mind and be interested in learning new material throughout their careers.
Understanding and Valuating Clients’ Desired Outcomes
To optimally resolve disputes, attorneys must be able to translate clients’ grievances (or defenses) into a legal outcome. People litigate for many reasons, and obtaining money is not always the highest priority. Some people want vindication. Some are bitter. Some have a rough sense that they should get “justice.”
It is the job of the litigator to translate these grievances into a legally available remedy. What type of money damages are available and for what injuries? Is a specific remedy (such as an injunction) available? If there is a choice, which remedy serves your client’s interests?
The first step in this process is listening to your client and discovering his or her needs. For this reason, STCL Houston’s Interviewing & Counseling course is recommended. Many ADR courses cover ways to identify and brainstorm optimal solutions for clients based on their underlying interests.
Related to the skill of client interviewing is the ability to evaluate a case. How much is the case worth, given the facts and the law? Part of the valuation process is assessing the factual and legal uncertainties of the case. What facts are in dispute and could conceivably go either way? How certain is the law in this area? Students can also obtain a greater understanding of clients’ available options in STCL Houston’s Remedies class.
Litigators will need to orally make their case in a variety of different contexts, including negotiations with opposing counsel, discussions with mediators, arguments to arbitrators, motions practice in court, and throughout the stages of an actual trial. A prospective attorney who does not desire or enjoy oral advocacy might not be well-suited for certain aspects of litigation practice.
Subject Matter Specialties
It is difficult to subdivide litigators by subject area. There are some broad categories, but many litigators handle a wide variety of legal subject matters. Some litigators focus on representing plaintiffs in personal injury cases. This is one of the more common stereotypes of the litigator. There is the potential in some cases for very high awards, but many times the injuries suffered are less dramatic and liability is clear. In such instances, it is more about negotiating a successful settlement with the defendant’s insurer than about dazzling a jury.
The flipside of the plaintiff personal injury career track is personal injury defense work. Here, you will be almost certainly hired by an insurance company that has insured the defendant. The defendant may be an individual with automobile or homeowners liability insurance, or it may be a business with liability insurance.
On the plaintiff side, one finds personal injury lawyers in all sizes of law firms, including very small shops. By contrast, insurance defense work is typically handled by mid-size to large firms.
Beyond personal injury litigation, there are many subject matters. Some lawyers specialize in one or several of these areas. Many litigators feel comfortable litigating across many legal subject matters.
For example, some law firms specialize in employment-related litigation (such as employment discrimination), but many lawyers would feel comfortable representing either a plaintiff or a defendant in such a case without a specialized background. Non-specialists in intellectual property may do some occasional trademark litigation. A litigator might handle a banking dispute. Litigators without any special training may undertake litigation concerning real property, such as boundary disputes, enforcement of real covenants and servitudes, and nuisance cases. A quick review of small firm litigation shops reveals covered subject matters that include not only personal injury and insurance disputes, but also family law, probate administration and litigation, guardian administration and litigation, personal and business bankruptcy, receiverships, fiduciary litigation, and commercial litigation.
Thus, as noted above, one of the hallmarks of a litigator is the ability to learn new legal subject matters. Exposure to a wide variety of substantive law areas is helpful. Knowing a little corporations or agency law, some bankruptcy law, or some family law can be helpful, since so many different legal subject matters can come across the desk of a litigator.
Of course, some litigators do specialize in particular fields, and it is up to prospective attorneys to adequately research the available options and match them up to his or her subject matter interests and monetary goals.
The substantive courses listed under Stage 3 of the accompanying pathway are meant to illustrate some of the main areas ripe for litigation—family law, insurance, bankruptcy, and intellectual property—but they are by no means exclusive or universally applicable to every career path. Please consult subject-matter specific subject overviews and pathways to learn more about particular areas of practice that involve significant use of dispute resolution processes.
Staying Out of Court: ADR-Specific Careers
As noted above, successful litigators must employ a variety of dispute resolution techniques. Some attorneys desire to help people resolve disputes but have no interest in the formal litigation process. There are several careers available for attorneys who fall within this category.
Some attorneys agree to take on a client’s case to resolve the dispute through less formal dispute resolution processes with an understanding that they will not represent the client if these informal mechanisms fail to resolve the outstanding grievances. For example, as described in greater detail in the Family Law Subject Overview, some attorneys try to focus their practice on collaborative law.
Additionally, attorneys can avoid court by becoming mediators, whereby they help to facilitate other parties’ resolution of the disputes. South Texas College of Law Houston students can become certified mediators by taking Mediation Practice or Mediation Theory & Practice.
Students should be aware, however, that it is very difficult for recent graduates to generate significant business as a mediator. Ordinarily, attorneys become successful mediators later in their careers after they have obtained significant experience. There are, however, certain opportunities to become a mediator earlier in one’s career. These opportunities are usually through government agencies, such as the EEOC. STCL Houston’s Mediation Clinic regularly handles EEOC mediations.Top