
Are Two Heads Better Than One? The Second Seat at Trial
By Steven N. Joseph
(Please note that the views expressed in this article are written as my own views to provide guidance for defense counsel, and do not in any way, reflect those views of Western World Insurance Company, Validus Specialty, or AIG.)
Many companies have specific litigation guidelines that may limit the number of attorneys to defending a case at trial to “one”. You get one attorney to try a case, and that is it. Of course, there would be flexibility to add trial counsel if there is a specific need.
However, the request for additional counsel is typically not made with a real thought process in mind (or not conveyed), other than expressing an undefined need. Too often, it comes across that defense counsel just needs an extra hand to assist, and the impression left on the other end is that the request is more based upon giving a young associate some trial experience.
While this is certainly a noble desire, this kind of request has nothing really to do with the actual strategy of winning at trial, and the request is rarely presented as part of a well thought strategy.
But, the fact is that there can be a lot of thoughtful strategy that should be a focus and discussed with the client in this instance. Trial is what lawyers do because they could not get a real acting job. It is theater. So, the focus of the second attorney should be the role that the attorney plays on stage. How will the supporting actor work with the lead? What role will this attorney play? How does this help with the defense of the case?
We can use the “rock concert” analogy here. Nobody will object to Simon & Garfunkel doing a concert in Central Park, and some of the songs Paul Simon sings and Art Garfunkel may sing some others. Everybody will go home happy.
But, imagine this. You pay premium price on Stubhub for tickets to a Bruce Springsteen concert. Bruce is going strong, and just finish singing Born to Run. Everyone is standing and cheering. Bruce then announces that he will take a break, and the warmup guy, Tommy Tonedeaf will sing a couple of songs from his soon never to be released album. Bruce comes back and rocks some more. You are happy again. Bruce leaves and you are waiting for the encore. Guess who is doing the encore. Tommy Tonedeaf of course! Time to get to your car and beat the traffic!!
Plaintiff lawyers are generally well ahead of the defense bar in thinking about the character they will take on in the play at trial. They are protecting the little guy. They may not have the fancy suit. They talk about justice, freedom and the American way. They develop schtick. They practice it. They perfect it. The way they dress. The words they chose. The good ones are great character actors.
I always remember a story that a defense attorney told me while I was attending a mediation in Albuquerque many years ago. She started telling me about the McDonalds hot cup of coffee case. As she told it, apparently, it involved a sweet old grandmother who brought the case, and McDonalds, instead of retaining local counsel, had lawyers from Chicago and Los Angeles come in to try the case, and started to beat up on the poor lady. “How dare you sue McDonalds!!”
This may have been the best in bad theater. I hear it got 0% rotten tomatoes.
I like thinking about “rotten tomatoes” when thinking about trial strategy in general and the retention of a second attorney to assist in the case. Plaintiff’s counsel will give a performance that will get 80% rotten tomatoes. Defense counsel is not quite as good. Maybe he or she is 75% rotten tomatoes. But, you have a specific plan for the second attorney, and that gets you another 10% rotten tomatoes. You are now at 85%, and you are on your way to winning the case!
I have spoken with defense counsel on this issue, and many of them have indicated that they will think about the added value other than you have an attorney doing paralegal work marking exhibits. One example I recently heard is the attorney who tries many architect and engineering cases, and they have attorneys in the firm with an engineering background. This second attorney certainly brings an added value to the case.
I also do not want to dismiss the inherent benefits of a second attorney, if deployed in the right way. If the trial will last a number of days, a jury may get tired of listening to one attorney’s voice and the way he or she asks questions. A second attorney breaks the rhythm, and get the jury all perked up (unless of course, you are the Bruce Springsteen trial attorney). A second attorney can watch the jury and notice reactions to questions, and see their overall demeanor. After the day’s proceedings, the two attorneys can compare notes and go over strategy for the next day’s proceedings.
Of course, there are some cases where you would never want a second lawyer. If the plaintiff’s attorney wants to do “David v. Goliath”, you do not want to have a strategy that amplifies the fact that you are Goliath. Of course, sometimes the cost of a second attorney may not be worth the limited exposure in a case.
I had an extreme example years ago that involved the issue of “waivable vs. non-waivable conflicts of interests. A law firm and ten of its partners were being sued for failure to advise their client of a conflict of interest. All ten of the firm’s lawyers wanted separate counsel because they believed that they were each in conflict with each other. I had to explain to the attorneys that a plaintiff’s lawyer would have a field day with this. The firm did not recognize the conflict they had with the plaintiff, but they recognize the conflict they had with each other? And, how will it be received by a jury to have to listen to ten separate lawyers.
Sometimes, a little common sense goes a long way!
I had a real estate agent case years ago in which defense counsel had planned to try the case on his own, and I insisted on getting a second attorney involved. We had just finished a second mediation that had ended in an impasse and it was clear that we were proceeding to trial. I then had dinner with the attorney who handled the mediation and his partner.
The attorney at the mediation was very good but very technical. He hid his emotions very well. His partner, however, was the President of his synagogue. It was obvious that he was the schmoozer.
Because plaintiff’s counsel was demanding millions, after dinner, I requested that his partner serve as co-counsel at trial. And I got to go to Santa Barbara to watch the trial, which I will say, hands down, is the best place in the world to watch a trial.
It worked to perfection. The jurors wanted the technical stuff and they wanted to feel the emotion on the defense side. The technical attorney did the opening. The emotion attorney did the closing.
And after two hours of deliberation, we got a defense verdict.
Now, this worked to perfection. However, remember what I said about the good plaintiff’s attorney. The good ones “develop, practice and perfect” their routine. If you are a firm that has a number of attorneys, and tend to employ a second seated attorney at trial, develop, practice and perfect. Spend some time in the beginning of every year, planning your case load, and what cases may go to trial. Who will be your partner? Have you established a routine together? Does each attorney know how the other attorney works? If attorneys, even before the lawsuit comes in the door, develop, practice and perfect their routine – this delicate synergy and role playing between the two, it will have a huge positive impact on their own confidence they bring to court and how they will be perceived by the jury. Utilizing this approach, the trial experience can be much more rewarding for the trial counsel, and ultimately, the client as well.