A jury trial is an experience that I hope none of you ever have to experience. There is nothing that can totally prepare any person – lawyer, client, witness or juror – for their first jury trial. Anyone with a significant interest in the outcome of the case – lawyers, paralegals and staff, client and client employees – during their first jury trial will all experience at some point during the process of preparation or presentation of the case a strong visceral reaction that they are going to screw up the whole case – causing loss of the case. It happens in every single person’s first jury trial experience – anyone who denies having had that feeling is not telling you the truth. Every single participant, including jurors, experiencing their first jury trial will at times be confused by the process, frustrated with the process, bored with the process, and sometimes, angry with the process. Those feelings are normal.
The last thing any client wants is the lawyer responsible for whole process of a trial to have those experiences at the client’s expense. Indeed, there is absolutely no reason why any client should bear such a risk. The one question most clients never ask is how many jury trials has a lawyer handled in his or her career. Most lawyers do not volunteer that information. Why? I believe many clients expect that lawyers who hold themselves out as trial lawyers or “litigators” have had many trials when the truth is that many have never had a single jury trial for which they were the primary lawyer. Lawyers do not often volunteer the amount of their experience because many lawyers either are embarrassed about the lack of trial experience they have or are afraid that they will lose clients if they admit their lack of trial experience.
How do you know the amount of jury trial experience that a lawyer has? Ask! If you are not satisfied with the answer, your next decision is either to ask more questions or find a new lawyer.
During the course of my more than thirty years of experience, I have been lead counsel in more than fifty jury trials, some in state court and some in federal court. Prior to becoming lead counsel in my first jury trial, I had many trials that were decided by a judge – court trials – including four in my first year of practice – and was the junior lawyer on several jury trials. Trials, whether they are jury trials or court trials, are the part of my practice that I find most challenging and intriguing. The trial process mixes creativity, tenacity, written and oral advocacy, psychology, and performance into one environment. That is not a process for everyone. Hopefully, you will never need to experience a trial – if you do, make sure your lawyer is experienced in the process and still challenged and intrigued by the dynamic of representing you and presenting your claim.
If you ask a lawyer who whether they have ever lost a case and their answer is “no,” one of two things is almost certainly true. They either have not been in enough trials, or they settle too many cases because they are afraid of trial. Never hire a lawyer who is afraid of the trial process. Hire one whose trial experiences provide you with the best possible chance or winning at trial if a trial happens. A lawyer with that skill set will also be able to identify when and for how much a case should be settled – before, during or after trial.