New attorneys: Are you a litigator or a trial attorney?

Are you a litigator or a trial attorney?

Without ascribing labels to my work, this is what I do for a living. I represent people and businesses involved in legal disputes in court, and in trial. While I am not, by any means, always in court, the focus of my work every day is preparing for trials and representing my clients in pretrial court proceedings and in trial. The goal of my work is winning the dispute for my client either by pretrial motion or at trial. While cases often get resolved through various means before trial, the goal of my work is to get ready for trial, go to trial, and prevail for my client.

So, what am I -- a litigator or a trial attorney? What do I call myself? How do I describe myself to clients? How do I view myself? How do I want others to view me? As a litigator or trial attorney?

I prefer to call myself a trial attorney. Here's why:

To me, litigator is a process-oriented word. To be a litigator is to be involved in the process of litigating. A litigator's work is to litigate -- to conduct the day-to-day process of a lawsuit. The work, the process of litigating, is the goal.

In contrast, my perception of the phrase "trial attorney" is results oriented. Trial is the end goal of any litigation, the time and place where the result of the case is determined by judge or jury and imposed on the parties. To be a trial attorney is to be trying cases and getting trial results. A trial attorney's work is to get ready for trials and try cases to victory. The trial result, the winning judgment, is the goal.

Obviously, on any given day, the actual work of a litigator and a trial attorney, as I view those terms, is not really any different. Pleadings, motions, discovery, depositions, trial prep, and ultimately, trial (if the case does not settle out). However, I think there is a difference in mind-set that plays into how the case is worked up and, ultimately, the result obtained for the client. The trial attorney mind-set is to, from day one of any case, start getting ready for trial. The focus is on the trial and winning for the client at trial. Everything is directed at that ultimate goal. Conversely, a litigator mind-set is to work up the case for possible resolution by a number of different means. Resolution of the case is the goal, and not necessarily through a win at trial.

In my practice, I am striving to work my cases towards the winning result at trial as opposed to simply moving the case along -- processing the case -- to a resolution. Thus, I prefer the title of trial attorney over litigator. Don't get me wrong, like litigators, trial attorneys seek to conclude cases before trial by dispositive motion or through settlement on favorable terms. No competent attorney goes to trial where there are other ways to get the good result for the client.

However, I believe a trial attorney mindset will always generate better pre-trial resolutions for the client as well. If you are, from day one of the case, working up strong trial arguments, those arguments will play themselves out in strong dispositive motions. On the settlement side, if you are viewed as a true trial attorney itching to get into the courtroom, the risk of trial for your opponent increases and the settlement value of the case to your client increases. I have been in settlement discussions with attorneys that I just know will not go to trial. Their threat of going to trial is a bluff and I know it. Invariably, I can put more pressure on those attorneys and they in turn put more pressure on their clients to settle. The result -- a better settlement for my client. Tough, tested, trial-ready -- the trial attorney mind-set -- will always yield a better pre-trial result for your client.

Most importantly, I prefer trial attorney because it reminds me every day that it is not the process, but, rather, the result that matters. One can easily get trapped in the to-and-fro, and the competition, of motion and discovery battles, and letter-writing campaigns. But do they serve the overall goal of getting the win at trial for the client? Does sending out reams of written discovery that you will never move to compel responses to get you ready for trial, or get your client the best result? Does asking a deponent where he went to high school or what his first job was further your client's position on the merits and ultimately at trial? Maybe yes, maybe no. But the desired result -- a win for the client at trial -- should drive that determination and not the customary, routine processes of motions, discovery and depositions that we all fall into in our practices.

A trial attorney mind-set has me focused always on the overall goal of a win at trial for the client. A litigator mindset has me mired in the day-to-day process and losing sight of getting the win my client hired me to secure.

So, I am a trial attorney, and not a litigator. How about you? 