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Selecting the Small Trial Firm to Win Your Case

The process of selecting a trial lawyer is a difficult one. Many ingredients make up the "chemistry" that results in a successful professional relationship with your trial lawyer. One purpose of this article is to discuss those ingredients.

One element of that chemistry is a good "fit" between the nature of the case or the representation and the law firm. Sometimes the size of the firm will bear on the client's selection of counsel. Here, the decision is between the large firm and small firm. There are advantages to the selection of small trial firms, just as there are advantages to the selection of large firms. Each has its own advantages and disadvantages. We advocate the advantages of the small or "boutique" trial firm.

Trial lawyers are an unusual breed. They differ from transactional lawyers. They think and act differently. Many describe them as independent and action-oriented, more so than their brethren of the rest of the bar.

Small firms dominate the civil litigation bar, even to the exclusion of the personal injury bar. Many small trial firms are spin-offs of larger firms. Members of small firms often acquired their early experience as prosecutors, public defenders or simply by carrying the briefcases of older, more experienced private practitioners.

Many people, including corporate in-house lawyers, believe that if they retain a large law firm the trial lawyers must be top quality. Large firms developed around corporate and transactional practices. Only a few large firms besides the insurance defense firms developed a trial practice that dominated its culture.

Lawyers who are a part of the insurance defense bar are associated with firms that specialize in insurance litigation. We know these firms as "defense" firms. They are generally larger and have a dominant type of trial practice-insurance company defense. In non-insurance related defense work, litigators are frequently part of a larger firm whose corporate or transactional practice dominates.

Among trial lawyers, a distinction is drawn between "trial lawyers" and "litigators." In Florida, the Bar developed a board certification program for civil trial lawyers more than thirteen years ago. It added a board certification program for business litigators a few years ago. The trial experience required for certification as a business litigator is less than that for certification as a civil trial lawyer. This suggests that some clients must decide the need for a "trial lawyer" or a "litigator."

The selection of the "right" trial counsel is a process of matching the right lawyer to the case. There is no one "right" lawyer for every case. Trial lawyering is too much of a human process to say that one lawyer is right for every case.

With this background, you should consider the following advantages of small trial firms:

1. Small firms are results oriented. Their reputations depend on results, as does their repeat business. Therefore, getting the desired result is of prime importance.

2. Small firms offer personalized service and responsiveness. Every client is important to a small firm. Ideally, every client is entitled to believe that he or she is the only client of the firm. Small firms can make every client believe that although they are not the only client, they are an important client.

3. Loyalty is the intangible that links the small firm and the client. This loyalty grows from trust and confidence in the firm, and the firm's appreciation of continued representation. This relationship is more akin to the "old style" lawyering that appears to have all but disappeared in the past fifteen years.

4. Small firms give clients direct and immediate access to the senior lawyer responsible for the case.

5. Decision making is streamlined. Small firm lawyers have no need to confer with numbers of partners. The client and the lawyer can communicate directly and with ease.

6. Courtroom experience is at the heart of trial lawyering. Just as with athletes, there are lawyers who are naturals in the courtroom, and there are those who become good courtroom lawyers with training. Experienced trial lawyers have a "sense" of the right things to do. They see the case as an evolving, dynamic process. They intuitively know what persuades the jury. Experience guides their presentation. They take the complex and arcane of the commercial world and make it interesting and understandable to the average person.

7. Trial lawyers are familiar with courthouse personnel and procedures because they visit the courthouse with regularity. They earn the respect of courthouse personnel and continuously return that respect. As a result, they readily obtain cooperation from courthouse personnel on administrative matters.

8. Small firms provide direct and immediate supervision of younger lawyers. They must, if they are going to accomplish the above objectives. Young lawyers must "learn the ropes" to carry the firm forward. We hear the criticism leveled against large firms that the partners are so busy producing the required business and billing the required number of hours that there is no monetary return for supervising juniors. Thus, juniors are left to fend for themselves. This may explain, in part, the growing number of malpractice cases filed against large firms. Trial firms, especially if they are small, cannot afford the luxury of leaving younger lawyers unsupervised if they want to retain their reputation and their clients. Mentoring is a key ingredient of small firm practice.

9. Younger lawyers in small firms have a direct involvement in cases. They learn at an early stage of their development that not every motion hearing is the beginning of the apocalypse.

10. Younger lawyers receive their training by working under direct supervision. The emphasis is on performance, so their work must be productive and provide value to the client and the firm from the outset.

11. Small firms lack the multiple layers of personnel that exists in larger firms. Therefore, there is little or no reason for two lawyers to show up at depositions, especially to defend them. In addition, fewer of the detested "conferences with (other lawyers in the firm)" appear on billing statements. Younger, less experienced lawyers are used to economic advantage where possible. Therefore, they require a certain amount of guidance and direction. As the number of people in a firm grows, so do the number of "conferences," much to the chagrin of knowledgeable clients. Justifiably so.

12. It is well known that lawyers in small firms have limited administrative involvement. Partners' meetings are frequent though not structured; they take place all the time--at the water fountain, over lunch and in office hallways. The frequency of meetings is a product of the smaller and informal environment. They devote every resource to working for the client. This, of course, translates into more profit for the smaller firms, even at lower rates.

13. All of the above results in quality representation at reasonable rates. One thing is certain, small firms have greater flexibility to enter alternative fee arrangements. It takes very few people to decide in favor of or against an alternative fee proposal. The entrepreneurial spirit is found at this level of the practice.

Good trial lawyers are good trial lawyers whatever the size of the firm that employs them. They exist in small firms and large firms. The size of the firm does not determine the quality of the trial lawyer. Selecting a lawyer and law firm is a serious matter that should not be left to chance or size. There are advantages to large law firms and small. Different facts and different legal issues frequently compel the application of different criteria in the selection of lawyers and law firms. Small, experienced trial firms can frequently provide advantages in litigation that larger, less concentrated firms cannot.