Litigation attorney is an awkward name. Most lawyers refer to litigation attorneys as trial lawyers. Litigation attorneys or trial lawyers, whichever you prefer, prosecute and defend civil lawsuits. Prosecute here does not have a criminal law connotation. In criminal law the plaintiff is the state (for example, A The People of the State of California), represented by a prosecutor, while the defendant is a private individual or entity represented by a criminal defense attorney. Prosecutors and criminal defense attorneys have little in common with civil litigation attorneys.
The name trial lawyer is often associated with lawyers representing individuals in personal injury cases, while lawyers representing personal injury defendants (either individuals or businesses) are usually called defense lawyers or defense attorneys. Defense attorneys are typically paid by insurance companies. In recent years trial lawyers receiving bad press have attempted to replace trial lawyer, with consumer lawyer, in the public imagination. There is no particular name for litigation attorneys who represent businesses suing each other over business disputes.
Litigation in the minds of most people means lawyers, witnesses, and judges in courtrooms. However, the ratio of preparation time in the office to actual time in trial at the courthouse is often said to be 3 to 1. Personal experience indicates this is overly optimistic, and that 5 to 1 is probably more accurate. This is often surprising and distressing to clients involved in litigation, who have a difficult time understanding how and why so many hours are spent by their attorneys getting ready for the main event, particularly when the clients believe a judgment in their favor is a no brainer.
There are a number of reasons why preparation for a trial typically takes so much longer than the trial itself. One of them is the availability of pre-trial discovery. A few generations ago there were no procedures for obtaining testimony or records prior to the trial. Civil litigation attorneys could use subpoenas to compel witnesses to come to court and testify during a trial, and to bring records with them. However, without advance notice of how witnesses might testify and what records might turn up (much less what they might say) trials were full of surprises. Critics called this a trial by ambush.
Now we have discovery. Well before the trial takes place, civil litigation attorneys can compel people to answer questions in a conference room under oath before a court reporter, as if they were in a trial without a judge. These sessions are called depositions. Parties (the plaintiffs and defendants) can also be compelled to provide written answers to written questions under oath. These questions are called interrogatories. Lastly, parties and non-parties can be compelled to produce records for inspection and copying.
If civil litigation attorneys fail to do adequate discovery and as a result their clients lose at trial, the attorneys can be sued for malpractice. This prospect encourages attorneys to do thorough discovery, and thorough discovery (not just acquiring information through the discovery process, but analyzing it for reliability, relevance, and persuasiveness and preparing it for presentation) takes a tremendous amount of time. Then there is legal research dedicated to finding the law applicable to the case, writing persuasive motions and trial briefs, and presenting persuasive arguments during the trial. Even with easily sorted electronic data bases, research can be a very time consuming endeavor. Good legal writing is difficult. Few attorneys master it.
After discovery, research, and writing, the trial frequently feels like a welcome relief . Thanks to news reports and fictional courtroom dramas on television or in the movies, people have a fairly good idea of what civil litigation attorneys do during trials. However, real trials are much less exciting and last much longer than fictional trials. Examination of witnesses can be tedious for the judge or jury and at times positively boring. Perry Mason moments - when the witness breaks down under cross-examination and admits to breaching a contract or committing fraud, for example - are few and far between. Furthermore, the good guys do not always prevail.Conscientious litigation attorneys work hard, worry about their clients, agonize over trials, and fight to win. I consider myself one of the best.
Stanley D. Prowse is a Civil Litigation Attorney and trial lawyer specializing in civil litigation cases in the greater San Diego area.