In England, lawyers are not all allowed to practice in the courtroom. The bar is divided into solicitors and barristers, and only barristers actually litigate cases in the court. The solicitors stay in their offices, give advice and draft contracts. The barristers put on white wigs and duel before the judge and jury.
In America, any lawyer can argue a case in the courtroom. Once you finish law school, pass a state bar exam and hang out your shingle, you're free to call yourself a "litigator"--a trial lawyer, one who "litigates" cases.
Lots of lawyers don't like to go to court and, believe it or not, some experienced counsels have never been inside the halls of a courthouse.
Some Prefer Desks
Some lawyers prefer to sit at their desks. Tax lawyers rarely go to court. They analyze tax shelters. Entertainment lawyers don't go to court. They negotiate "deals" for their celebrity clients. Going to court would mean they would have to wear a coat and tie.
Even experienced litigators are not qualified to appear in court to handle every sort of legal problem. As Chief Justice Warren Burger has pointed out: "To treat a Bar Certificate of Admission to Practice Law as a passport to try any and every kind of case in any court makes no more sense than to say a medical-school degree qualifies the holder to perform any kind of surgery."
If you're about to hire a lawyer to represent you in court, make sure the lawyer is more experienced as a courtroom advocate than a contract draftsman. It is not enough just to know how to find the courtroom.
In their book "Winning With Your Lawyer," authors Burton Marks and Gerald Goldfarb tell of an unfortunate Los Angeles couple who thought they had an experienced litigator as their lawyer. The lawyer, who appeared to be in his 30s, said he was a "litigator." In fact, he did a pretty good job before trial: prepared documents properly, handled himself well during depositions and argued motions in court. But as the trial approached, "he began to display an uncharacteristic timidity."
No wonder. It was the lawyer's first trial.
The lawyer was a "litigator," but not a "trial lawyer." The late Herman F. Selvin, a renowned courtroom advocate, had been known to grumble: "I'm a trial lawyer, not a litigator. Litigators don't try cases, trial lawyers do."
Litigation is the legal name for the process of going to court, but it includes much more than arguing a case before the judge and jury. In fact, most litigation takes place outside the courtroom.
Litigators spend countless hours in the library preparing briefs filled with authoritative legal citations. They grill witnesses in depositions and argue pretrial motions before a judge. But because most civil cases are settled before trial and most criminal cases are plea bargained, many so-called "litigators" have very little experience in front of a jury.
Indeed, there are litigation partners at large, prestigious law firms that have only handled one or two trials.
So if you need a lawyer who is at home in the courtroom, you'll have to do some digging. And ask some tough questions.
A lawyer may tell you he is a litigator or a member of a law firm's litigation department. Don't let it rest there. Find out how many jury trials he has handled. Does he understand how to communicate effectively with a jury? Ask when his next court appearance is, and go to court and watch him in action.
Advice to Settle
You want a lawyer who is not afraid of the courtroom. Otherwise, you may not get the best advice. For example, an inexperienced lawyer may advise you to settle because he doesn't want to take the case to trial.
On the other hand, you don't always need an experienced (and expensive) trial attorney. If you are asking for advice about a partnership or trying to incorporate a new business, a trial attorney won't be able to help you. And if your lawsuit is likely to settle or be dismissed on a legal issue, a trial attorney may not be necessary. But if your case is about to begin trial, and especially if you have a lot of money at stake or you stand accused of criminal charges, make sure you have a lawyer who can competently present your case to the jury.
If your case is in federal court, you should find out if your lawyer has appeared much in federal court before. There is a big difference between law practice in state and federal court. There are different local rules, different customs.
Attorney Jeffrey S. Klein, The Times' senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.