I am not proud to admit this, but it is possible that my three-year-old niece knows more about branding than I do. I learned this the other day when I was reading my niece one of her favorite books, Fancy Nancy.

For those of you who not know Nancy, she is a little girl who loves to dress fancy, act fancy and talk fancy. For example, this little girl does not say that her favorite color is purple. She prefers fuchsia, a word that is “fancy” for purple. Similarly, Nancy does not want a new hairdo. No, Nancy uses the fancy word “coiffure” instead. For some reason, my niece loves Nancy, but I think she is a showoff. When asked why she loves the know-it-all Nancy, my niece explained that she made things sound better.

Maybe my niece had a point. If you want your small firm to sound better, then use fancy words. As Nancy would explain, do not call yourself a “trial lawyer.” Everyone knows that “litigator” is fancy for trial lawyer. Or is it?

When I was asked what kind of law I practiced, I always said “litigation.” I learned to call myself a litigator from my partners in Biglaw. To me, the term “litigator” — or one of Lat’s favorite words, “litigatrix” — conjures up an image of a lawyer who wears a nice suit, shares Nancy’s superb vocabulary, and is worth every penny of his/her hourly rate. A trial lawyer, on the other hand, has a gravelly voice and cheap shoes, and does his best to imitate a character from a John Grisham novel.

When I left Biglaw and went to a small firm, a self-proclaimed “litigation boutique,” I was still a fancy “litigator.” Little did I know that I was selling myself short.

As my favorite small-firm attorney, Joe Jamail, once observed, a “good lawyer” means a “good trial lawyer[].” The term litigator is something to avoid. Or, in his own words, “[w]hat the f*** is a litigator? I’m a trial lawyer. I try cases.”

The California small firm of Sylvester, Oppenheim & Linde offers a further refinement of the distinction between the terms “litigator” and “trial lawyer.”

Litigation is the process of handling the paperwork relating to a lawsuit. In the last 20 or so years, the percentage of trial attorneys in the practice of law has been steadily declining.

Even when we proceed with a strategy to settle or avoid trial, because we have agreed with the client that is it in his or her own best interest, our trial experience gives us a tremendous advantage.

If the opposing party hires a litigator, he will not likely understand the legal issues from the point of view of a jury trial. While it is imperative that both sides understand the point(s) of law involved in a lawsuit, the additional understanding which only comes from addressing a jury completely escapes a litigator. Please don’t misunderstand. A good litigator understands what happens at trial (many have seen them), but that is like trying to learn to drive from the passenger’s seat of a car.

If you think that was rough, check out what they say about what happens if you retain a litigator and end up going to trial:

If you are a party to a lawsuit (or might become one), regardless of which party filed the suit, there are really only 4 scenarios, and they will very likely affect your result:

You hire a trial attorney who also litigates your case and the opposition hires a litigator. This is the best case scenario for you for the reasons outlined above. NOTE: This is most often our clients’ situation and we use it to our clients’ advantage time after time.

You hire a big firm trial attorney, who has a junior member of the large firm litigate the file for them, and gets involved if your matter actually goes to trial. This is just too much like hiring a litigator, except your costs are usually higher.

You hire a litigator and hope the opposition does not hire a trial attorney, which would be to the opposition’s advantage and more importantly your disadvantage. This is a risk that I would advise you NOT to take.

You hire a trial attorney (who litigates) and so does the other side. This would indicate that your opponent is smart and while this is most likely the fairest fight, in my experience, this scenario will likely lead to a more prompt resolution of the matter because both sides will be litigating from the same perspective….how the jury would view the points of law and actions of both parties.

Similarly, the Legal Blog Watch offered an explanation for why “trial lawyer = good; litigator = not so good”:

A good litigator will know all the facts and issues. He or she will be brilliant at motion practice, discovery and preparing briefs. A good litigator is an inductive thinker, and if you want to know the most minute point of evidence, the good litigator can tell you about it.

In contrast, a good trial lawyer thinks deductively and understands that telling the jury more does not lead to increased comprehension. Too many times I have had litigators assure me that after the jury has heard two weeks — or two months — of testimony, they will fully comprehend how the microchip works or the structure of a nuclear generator or whatever the highly complex subject of the litigation is. The good trial lawyer teaches the jurors for the moment, hoping they will gain some momentary insight the impression of which they will carry to deliberations.

Even though the vast majority of cases settle, the client wants to know that you can take the case to trial and win. In other words, they want to know that you can drive the car, rather than merely sit in the “passenger’s seat.”

So, to all of you small firms out there, do not call your attorneys “litigators.” Be fancy and call yourself “trial lawyers.” And, if you do not have much trial experience and feel dishonest in calling yourself “trial lawyers,” call yourself “mediators” or “brief poets” (or some other fancy word for writer) — and consider adding some trial lawyers to your roster. The term “litigator,” like the term “hipster,” ought to be retired. It is just not fancy enough.

If you cannot let go of the term “litigator,” email me and I will put you in touch with my niece. She naps from 2:30 to 4:30 and expects to be paid in Dora the Explorer memorabilia, but she will help you perfect your firm branding.


When not writing about small law firms for Above the Law, Valerie Katz (not her real name) works at a small firm in Chicago. You can reach her by email at Valerie.L.Katz@gmail.com and follow her on Twitter at @ValerieLKatz.


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