How Litigators Evade The Question Of Trial Experience

In-house folks are correct to look for trial experience in their trial lawyers as a matter of self-defense.

We’re retaining counsel in a case that we think might actually go to trial.  So I ask the question that you’d expect:  “How many cases have you tried?”

The litigator answers:  “Our firm has more than 1,000 lawyers located in ten offices around the world.  We’ve been ranked highest in client satisfaction for three consecutive years . . . .”

“Yes, yes.  But how many cases have you tried?”

“We’ve been doing complex litigation for most of our hundred-year history.  We know an awful lot about the industry involved here, as demonstrated by our multi-practice industry group. . . . “

“Yes, yes.  But how many cases have you tried?”

“I’ve been listed in Best Lawyers in America for the last three years, and I was listed last year in Chambers.  Those accolades go only to a tiny percentage of the finest lawyers in the country. . . . .”

“But how many cases have you tried?”

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“We have great success on dispositive motions.  We’ve recently won summary judgment in two cases quite similar to yours. . . .”

“How many cases have you tried?”

“As you know, most cases settle.  I’ve handled hundreds of cases in my life, but we’ve either won the cases on dispositive motion or settled them. . . . “

“Have you tried any cases?”

“Two, actually.”

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“Of those two, how many did you try to juries?”

“One.”

“Were you the lead lawyer at trial?”

“We co-chaired the trial.”

“I’ve never heard of that before.  Who did the opening and closing?”

“The other guy.”

“Did the case go to verdict?”

“No.”

“What happened?”

“We settled after opening statements.”

I understand how difficult it is to gain trial experience these days.  And I understand that — apart from people who worked as federal prosecutors — you’re unlikely to find lawyers who’ve actually tried relatively complex cases.  Most litigators don’t try cases.  Most people who boast about their trial experience have tried many cases that lasted for a half-day each and presented no tricky issues.

But in-house folks are correct to look for trial experience in their trial lawyers.  First, trial experience matters.  We ask questions about trial experience because the person who’s trying a case every year or two is probably more comfortable in front of a jury than the 50-year-old who’s never done it before.

Second, we ask questions about trial experience as a matter of self-defense.  What’s an in-house lawyer to say when our colleagues in the business ask about the experience of our trial counsel?  Business folks might ask before trial:  “How many cases has our trial lawyer tried?”  We can either try to explain why trials don’t matter, or we can confidently say, “Dozens.”

Worse yet, after we’ve dropped a few tens of millions of dollars at trial, business folks might ask:  “By the way, how many cases had our counsel tried before you let him lose our case?”

You can’t blame me for asking.

And I suppose I can’t blame you for evading the question.


Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.