what is a litigator?
I have been practicing for nearly twenty years now, most of that time as a civil litigator – sometimes known as a trial lawyer. These terms have important meanings, as many lawyers today have never set foot in a courtroom. There are so many areas of practice that simply do not require a lawyer to have any litigation experience. If a client finds themselves in a lawsuit, either as Plaintiff or Defendant, it is vitally important that they hire an attorney who is an experienced litigator, and not simply a general practice attorney. Unfortunately, many attorneys take every client that walks in the door, rather than focusing on one area of practice.
A good analogy is doctors. You see a general family doctor for day-to-day issues, but they refer you to a specialist if you need surgery or your problem is very specific to one organ or system. Even though all doctors learn a little bit about everything in school, you do not want your family doctor to do open heart surgery.
The same is true with lawyers. I get calls all the time asking about divorce, bankruptcy, child custody, or minor criminal cases. I refer all of these out to other attorneys. I know a little bit about each of these areas, but (most importantly) I know that I am not a specialist in any of these areas. I would not be able to help my client nearly as well as an attorney who has spent their career focusing on one of these areas. Likewise, I know lawyers who work in real estate their whole career who would have a nervous breakdown if you put them in front of a jury.
Even trial lawyers have specialties. Some spend their whole career only taking criminal defense cases. Others only practice personal injury or medical malpractice. Generally speaking, a civil litigator is an attorney who specializes in taking all kinds of civil cases through the court procedure, ending in either a trial or a settlement. These could be cases involving contract disputes, business disputes, construction, real estate, commercial cases, consumer cases, personal injuries, or any other case involving a dispute between two private parties. I personally have handled all of these kinds of cases, but less so with personal injury, as that tends to be its own specialty.
Unfortunately, as I stated above, this does not keep some lawyers from taking cases outside their areas of expertise. I have won many cases over the years where I can attribute much of the success to the other lawyer simply not knowing what they were getting into. I recall one case where the other attorney missed a critical deadline that essentially gutted his case. The Judge looked at him apologetically and asked if there were any good reason why he missed the deadline, and the attorney (to his credit) admitted that he simply didn’t realize the deadline was so important.
Litigation is hard. From the early stages of the case, through motions, discovery practice, and disclosure deadlines, there are numerous traps and pitfalls. On top of that, the trial itself is extremely difficult and takes a lot of preparation. Because most cases settle before trial these days, even many litigators have to admit that they have gone years between actually having to try a case through to the verdict. I have been fortunate in being able to take many more cases to trial than most attorneys in the greater Dayton area. The work is still hard, but I do not feel uncomfortable in Court anymore. That is a feeling you can only get with experience.
If you have a tough case that might turn into a messy litigation battle, make sure you have an attorney who actually specializes in litigation. You would never ask a podiatrist to perform brain surgery; asking a non-litigator to take your case to trial could be nearly as disastrous!
