Going to trial is expensive, public, time consuming, and emotionally draining. Before determining that a trial is the best option, the following are a few, of many, potential questions that an individual should thoughtfully consider. Always consult experienced professionals in all legal matters.
1.Have I attempted and exhausted all reasonable settlement efforts? A trial should be a last resort, not a first option. Expense, publicity, delay, emotional investment, and the possibility of losing or triggering a massive and successful counterclaim are all compelling considerations. Additionally, being adversarial, a trial may sever relationships.
2.Are the facts and law favorable to success? An attorney has an ethical obligation not to file a baseless lawsuit and may be sanctioned for failing to exercise due diligence. Both the client and attorney may have to pay the other party's expenses. For example, if it is essential to success that the traffic light was "red" and every interviewed witness states that the traffic light was "green," then going to trial appears futile. However, a skilled investigator will probe these accounts for bias, lying, and color blindness. Regardless of how insulted one is by another, not every situation possesses a legal remedy. Being late for meetings or missing them outright may be offensive but is likely not unlawful. However, if child custody or visitation is involved, being late may be significant. Consequently, one must observe the surface factual accounts, their hidden aspects, and also the context, before reaching a conclusion.
3.Is a financial judgment collectable? Obtaining a favorable trial verdict does not automatically collect it. Individuals without financial resources who are unconcerned about their credit rating are "judgment proof." Attorneys quickly learn to collect a fee in advance when the client states that it is not about money but principle.
4.Do I clearly understand the time and expense of a trial undertaking? What is my true goal? Is this investment of resources, time, and emotion realistic and appropriate? Attempts to 'punish' another may also punish one's self. If emotions are raw, violence triggered by judicial proceedings is not out of the question, as domestic disputes illustrate. Depending upon the complexity and tenacity of the parties, litigation may take many years. Expenses may far exceed any potential recovery. If one simply wants to "move on," a trial may not be the best solution.
5.Joint representation by one law firm or one attorney may become a significant issue in complex litigation involving multiple parties. Are the parties' interests potentially adverse? Are there conflicts of interest? Where are the boundaries of fiduciary duties and attorney-client privilege? Joint representation may more readily allow a common and coordinated approach and a sharing of expert witnesses, hence efficiencies and cost savings, but may also be full of traps for the unwary. Carefully review this in advance of trial.
6.Have I carefully researched an attorney prior to making contact? State Bar Associations may provide grievance and disciplinary information. Legal directories, frequently available online or at large public libraries, may provide ethical ratings or specialization information. Most states provide special "Board Certification" of attorneys based upon years of experience, completing additional professional education classes, passing a specialization examination, and keeping-up with a minimum level of approved annual continuing professional education. What is the status of the attorney that you are considering?
7.Precisely what has my attorney agreed to undertake and for what fee? Carefully discuss all potential costs. A clear and detailed representation agreement is essential for both the client and the attorney. For example, court costs and expert witness fees are typically an additional expense that the client pays. An appeal of a trial court's decision is a separate undertaking with separate fees and expenses.
8.How much trial-related activity is appropriate and can I afford? For example, one may employ jury selection consultants, focus groups, and shadow juries that mimic the characteristics of the actual trial jury. All of this, and more, may be very costly. Do you and your attorney agree on these issues?
9.Precisely what individuals will be in the courtroom and what individuals will be working in a supporting role? Depending on the complexity of the case and the amount of financial resources available, a dedicated trial team of at least six individuals may not be excessive. Two attorneys in the courtroom are not uncommon. One speaks and questions, while the other keeps track of trial procedures and points of law. They may trade roles from time-to-time to better engage the jury. Prior to this, and continuing during the trial, an experienced investigator may be uncovering, collecting, and summarizing evidence and locating witnesses. Potential juror misconduct is an explosive issue. Assisting them may be a paralegal, an administrative/ clerical/secretarial person, and a technology/new media/public relations specialist. Is this a seasoned group of experienced professionals? How will this team likely compare to the opponent's team? Yes, a sports analogy is appropriate.
10.What role will contemporary technology play in the trial? This is simultaneously a question of expense, being up-to-date and persuasive, and countering what an opponent will present. Expert witnesses, forensic evidence, computer displays or animations, etc. may be critical to a successful outcome. Memorable exhibits and presentation technologies that captivate the jury are expensive to create and require an expert witness to verify and explain. Demonstrative evidence in this media age is critical. Persuasive presentations are both an art and science.
11.Do my attorney and I speak the same language and have the same expectations concerning communications? Does your attorney have adequate uncommitted time to devote proper attention to this trial? If an individual and her attorney either do not understand one another or have different views of what will constitute a successful outcome, it is time to reassess the undertaking. Timely returning of telephone calls and updates are only part of a larger picture. Perhaps one needs a different attorney. Perhaps one should not be going to trial.
12.Am I able to carefully listen to and conscientiously follow my attorney's instructions? If not, both of you are wasting time. If you have less than complete confidence in the anticipated trial strategy, something that should be discussed, then perhaps this attorney is not the right attorney for you.
13.Am I a difficult client? Potentially difficult clients are frequently apparent to an attorney during an initial interview but lack self-awareness. Do you have unrealistic expectations; are your motivations unethical if not unlawful; or are you angry and vindictive? Are your "hands clean?" Expect all of the "hidden" facts and "dirt" to be displayed in a public forum. A jury will likely spot these issues and an experienced opponent will certainly undertake to exploit them in the courtroom. A wise attorney will not undertake to represent such a client. Such a person may be so out-of-touch with the practical reality of the situation that she or he will turn-against the representing attorney. Physical violence is not inconceivable.
14. Are my attorney and I able to maintain a professional interaction and appropriate boundaries? Trials should not be a form of therapy for personal problems. Certainty affairs between an attorney and client, perhaps especially tempting in the context of divorce or family law matters, are disastrous. Ethical rules typically prohibit an attorney from engaging in an affair with a current client.
15.Do I have a compelling story or narrative? Successful trial attorneys, among other characteristics, present a clear and easily understood story. However, any attorney is only able to work with the facts at hand.
16.Am I satisfied with the manner in which the attorney will structure and present the case to the judge and jury? For example, if there is no written contract, will it be persuasive to the jury to argue that a handshake is the customary way this type business is conducted? Is this is a subject matter that requires a written and signed agreement to be legally enforceable? Consequently, the handshake in question is merely a customary non-binding negotiation courtesy? A jury has broad discretion to characterize the actions of the parties and determine the facts. What do the actions mean?
17.Is my version of the facts credible? Am I credible? How will negatives be addressed at trial? What are the relative strengths and weaknesses of my position? Will I testify at the trial? These are essential pre-trial considerations. Sometimes, perhaps often, it may be best to simply preemptively tell a jury about personal and event negatives and distinguish them from the subject matter of this case. "Y may hate Smith's behavior, as do I, but that doesn't make him guilty of murder," is a common argument to a jury. The client and attorney must agree concerning this approach.
18.Am I confident in my attorney's ability to successfully and persuasively communicate with the likely jury? Congruence is an aspect of successful persuasion. What is required for both the attorney and client to "relate" to the jury and judge? What is successful in one context may be unsuccessful in another. This assessment is somewhat subjective but critical.
19.What is the likelihood of a successful trial court decision being appealed? The attorney and client must discuss this possibility and how it may influence settlement negotiations. Since an appeal creates additional expenses and delay, a settlement now without a trial may be better than collecting a judgment, for example, four years in the future.
20. At what physical location am I going to trial? Do not go to trial in an unknown location without involving a local experienced professional who understands the local legal scene. Different courts have differing local rules and judges, like us, have preferences. Local public officials, such as court clerks, court reporters, and law enforcement, have significant discretionary authority. Potential jury pools may greatly differ. A whole range of social attitudes may color the outcome. Many successful trial attorneys assert, with significant justification, that trials are won or lost based upon venue (location) and the jury selection process (voir dire). While insurance is not mentioned under procedural rules, an experienced observer will guess that a big-city lawyer appearing in a small town signals insurance. It may be best to utilize an experienced local attorney.
This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult experienced legal professionals in all specific legal situations.