In a nutshell
Litigation attorneys help their clients resolve disputes. If disputes are not settled by negotiation, they will be concluded either by court litigation or by an alternative form of dispute resolution, such as arbitration or mediation, both of which are potentially more expeditious, less costly and out of public view.
Disputes may concern anything from unpaid bills or unfulfilled contract terms to problems between landlords and tenants, infringement of IP rights, construction-related claims, the liabilities of insurers, shipping cases, defective products, entertainment industry wrangles… the list is endless. Since the recession, many general litigators have become increasingly involved in conflicts arising out of securities, white-collar crime and bankruptcy scenarios.
Some litigators will concentrate on specific types of claims, making use of particular industry knowledge; others will remain generalists, applying their legal experiences – especially trial experience – to all manner of cases and clients. The onus is often on young litigators to specialize early: "You were almost discouraged from being a specialist 30 years ago. It is more important now to think about a speciality. A good litigator is a generalist: they can try any case, but also having a speciality is key to marketability now," according to David Lender of Weil, Gotshal & Manges. Some litigators will focus on appellate matters – see our Appellate chapter for more info.
What litigators do
- Pre-litigation counseling and advisory work. Part of the job involves mitigating the risk of future wrangles by counseling clients on the ramifications of business decisions and ensuring compliance with laws and regulators. “We focus on risk analysis,” Anton Valukas of Jenner & Block stresses. “All good litigators understand that an appropriate evaluation of a matter in the first instance can significantly reduce exposure to litigation.”
- Advise clients on whether they have a valid claim, or whether to settle or fight a claim made against them. “One of the biggest mistakes lawyers can make is to oversell the chances of winning,” Robert Giuffra of Sullivan & Cromwell tells us. “The client needs the best possible assessment of the chances of victory and what it will entail to get them there.”
- Draft pleadings; for example, if acting for a defendant a litigator will prepare a motion to dismiss or an answer.
- Assuming that the case goes beyond the pleading stage, litigators will ordinarily proceed to the discovery phase, where each side serves discovery requests on the other in order to gain access to evidence that is relevant to the case.
- There is a vast amount of document review, during which litigators attempt to find the 'smoking gun' that will win the case – for example, an email that indicates strong evidence of a conspiracy. “There is a perception that a stunning moment in a trial will turn it all around,” Valukas tells us. “The reality is if you have two really talented lawyers who work exceedingly hard, the facts will determine the case. For every hour in the courtroom there have been dozens of hours spent outside it, getting ready for that moment. All that preparatory work for trial is so important."
- Draft evidentiary objections. This involves constructing arguments on the admissibility of evidence that may be prejudicial, or beneficial, to either side. Represent clients at pretrial hearings.
- Prepare and conduct depositions.
- Senior litigators, normally at partner level, are responsible for the way the case is presented and conduct the trial itself, deciding which arguments will resonate with jurors and undertaking witness cross-examination and closing arguments. “You always want to litigate a case through the rubric of your main themes. One mistake lawyers make is to overcomplicate a case,” says Giuffra. “It's very important to figure out and focus on the four or so issues that matter most.”
Realities of the job
- “The great thing about litigation is the variety; everything is new almost all of the time,” says Carey Dunne of Davis Polk. “The legal issues can be similar of course, but the industries are frequently different and so are the facts, which means the strategy and analysis is always challenging and evolving.”
- Everything is driven by procedural rules and the timetable of the courts. Good litigators understand how best to maneuver within the system, while also developing case-winning strategies.
- As litigators need to abide by tight deadlines, the nature of the work is often cyclical. “There may be periods when you just have a tremendous volume of work that needs to be accomplished in a short amount of time, but there's also a level of rush and excitement about that,” says David Zinn of Williams & Connolly.
- “You have to be someone who is willing to deal with uncertainty; litigation is inherently uncertain,” Giuffra tells us. “Planning goes out the window; I've had to learn how not to plan,” confirmed one Fried Frank associate. “It's an adjustment and some people aren't ready for that. You need to be adaptable.”
- “Searching through documents is often like looking for a needle in a haystack; it can be a taxing and tiring process,” explains F Joseph Warin of Gibson Dunn. However, for junior attorneys this is not as prominent a task as it once was. While initial document review is often outsourced to contract attorneys, litigators at all levels of seniority need to have excellent knowledge of the key documents in a case.
- Juniors do also perform written work, like first drafts of pleadings, and the preparation of questions to be asked, and sometimes conduct depositions.
- Litigators need to express themselves succinctly and precisely in all their communications.
- “Taking apart a set of arguments is like a labyrinth of pros and cons,” Warin says. “You need to figure out which are likely to be the most persuasive for a judge or jury, as well as discarding arguments that you eventually find out are flawed.”
- Deciding upon which arguments will be the most effective is made easier by jury simulations. “You don’t go to trial in a big case without having some testing of which key points resonate with potential jurors,” according to Jonathan Lerner of Skadden.
- Front-line participation in full-blown trial advocacy generally isn’t something that litigators experience until later in their careers. “Sometimes young lawyers don't get the opportunity to be in the courtroom,” says Randy Mastro of Gibson Dunn. “I always encourage them to take on additional pro bono assignments where they can get that experience.”
- Litigators may be known for having the gift of the gab but it's just as important to put your ears to good use. Brad D Brian of Munger, Tolles and Olsen tells us: “If you're in a courtroom you need to listen to what the judge and opposing counsel are saying. So many lawyers at the beginning and end of their careers are tied to their scripts for their outline or witness examinations and are not listening to what the judge, opposing counsel or witnesses are saying.”
- The overwhelming majority of cases will settle before reaching trial.
- As clients tighten their budgets for full-blown trials, law firms are having to compete far more for the fewer matters that are going around. Cash-conscious companies are turning instead to mediation or arbitration to settle disputes or directing their lawyers to keep costs down. While the amount of litigation may have fallen, cases that do make it to trial are increasingly complex or high value.
- Recent high-profile data breaches have catapulted cyber security and privacy into the spotlight. It's now one of the fastest-growing practices out there. Data breaches; a growing push for consumer protection; and regulatory shifts concerning privacy and data sharing have highlighted the need for businesses to have a strong understanding of the law in this area. For example, the Federal Communication Commission's (FCC) 2015 ruling on the Telephone Consumer Protection Act increased the scope of liability businesses face, while in Europe the European Court of Justice ruled that national regulators have the power to stop companies transferring EU citizens' data to the US.
- Class action lawsuits are another booming area. Privacy class actions are increasingly hitting the courts as consumers take on companies whose data breaches exposed personal data. Other busy areas right now include class actions against inaccurate food and beverage labeling, and securities fraud. 2016 was also a high watermark for class actions concerning minimum-wage increases across several states, and independent-contractor classification in the 'gig economy'.
- The SEC announced it has filed the most enforcement cases in its history for the third year in a row. While mortgage-related matters stemming from the financial crisis have tailed off, litigators are more active in relation to financial services activity such as price fixing, municipal bond disclosures, and other securities litigation.
- Contentious IP matters in the healthcare and pharmaceutical space are tipped for an uptick. “There's a growing need for litigation services in the biosimilar area,” Evan Chesler of Cravath highlights. 'What on earth are biosimilars?' we hear you cry: they're basically generic copies of branded bio-pharmaceutical drugs. “The legal issues with biosimilars are similar to those which surround the development of generic drugs in the traditional chemical pharma space,” Chesler continues. “I think that will be a very big litigation focus in the coming years.”
- Whereas previous years saw a large amount of antitrust litigation due to the tough enforcement stance of the Obama administration, President Trump's rhetoric implies a more pro-business stance, so it is likely that there may be a decrease in litigation stemming from this source, but a possible increase in M&A activity.
- The last year has seen a large amount of healthcare trials taking place before the Supreme Court concerning the Affordable Care Act. It remains to be seen what, if anything, will replace it. The Court's decision over Texas's onerous abortion law will likely deter other states from pursuing the same line.
- The Trump administration's dismissive view of global warming is being met with legal challenges. Environmental nongovernmental organizations (ENGOs) are increasingly fighting new energy developments with regulatory and legal weapons. Using social media to mobilize support, ENGOs are drumming up considerable funding to enable them to pursue these challenges.
- In late 2015, the Department of Justice revealed its new white-collar crime policy which places an increased focus on the naming of individuals involved in corporate wrongdoing. Previously, companies could cooperate with investigators and hand over information about improper practices without having to identify those involved but, in part thanks to criticism that Wall Street execs have remained largely unscathed in the fall out from the financial crisis, the DOJ has toughened its stance. Credit will be given to companies who hand over such details, but commentators are concerned that in the interest of protecting employees, organizations may refuse to cooperate with the DOJ.
- The question of immigration reform is more pressing than ever under Trump. His travel bans continue to be met with fierce legal challenges all over the country.