is critical, clearly. During discovery, the attorney should ask themselves: ‘Do I need this evidence? If so, can I get it admitted?’ At the same time, there is evidence that should not be admitted at trial, and if an attorney does not know the rules of evidence, they will miss an objection. Equally important is the understanding that trial requires active practice. You get rusty or out of shape if you are not consistently trying cases. This can be very taxing and stressful, since trial and trial preparation is a massive commitment of time, energy and money. In the past you have distinguished between professional trial firms and ‘paper mills’. What is the distinction here and how does it manifest? Despite handling a high volume of clients, some law firms do not try cases. Or, if trial is unavoidable, they refer the case to trial attorneys. In some areas of the law, such as personal injury, the insurance carriers learn and keep track of those firms that take cases to trial and those that do not take cases to trial. This has a direct impact on the settlement offers extended by the carriers. That is, the attorneys known not to try cases will often receive lower settlement offers. Insurance companies know firms that will make them spend money to defend the case. As all attorneys know, there are no guarantees, and no matter how strongly you may feel about your chances of success at trial, there is always the risk you could lose (or get less money than your client deserves). The elimination of that risk (certainty) comes with a cost. By their very nature, settlements are less than full compensation because your client is taking less money in exchange for the certainty of compensation. On the other hand, trying a case may be the only way to get fair compensation for your client, and that compensation may be significantly higher than any settlement offer. If an insurance company knows that an attorney will try a case to verdict, then the insurance company must account for the potential verdict far over any settlement offer. This leads to higher settlement offers for your clients because the insurance company must account for the risk. You have also spoken in the past about how the discovery stage can show a lawyer’s experience at trial. Why is this? Depending on the case, discovery may need to be broad or limited. Discovery should be pointed in cases with limited causes of action and few witnesses (excluding experts). The information you need in a product liability or toxic tort 50 LAWYER MONTHLY AUGUST 2023 Juries expect graphics and interactive displays. Static displays, like a simple slide show, can be counterproductive. Lee Previant, Founding Partner at NP Law Firm, APC
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