Attorney vs. Trial Attorney: What’s the Difference?

When we think of attorneys, the ones that typically spring to mind are those we’ve seen on TV or in movies—the Perry Masons and Atticus Finches. They’re arguing passionately in court, uncovering hidden evidence, and delivering powerful closing arguments that hold the jury spellbound.

In short, we think of trial lawyers.

But the reality is few lawyers are actually trial lawyers. Most cases don’t go to trial and thus, are managed by litigators, not trial lawyers. If your grandmother’s will, your uncle’s divorce, or your brother’s DUI is being handled by a family attorney, chances are, they’re not a trial lawyer. That’s why, if you’re facing a trial, the lawyer your family likes is not likely to be the one protecting your interests before a jury.

The Difference Between Litigators and Trial Lawyers

The difference between litigators and trial lawyers primarily lies in their goals: while litigators aim to settle disputes, trial lawyers are looking for a legal confrontation. Litigators work towards finding the best negotiation strategy to settle a case out of court, while trial lawyers consider the best strategy to win over the jury or judge. From the start, a trial lawyer is looking toward a fight; litigators get as large a result as possible while avoiding a fight.

However, if litigation takes a turn and ends up going to trial, a litigator may need to call in a trial lawyer.

The Skills a Good Trial Lawyer Will Have

Most litigators specialize in an area of practice they’re most familiar with, whether that’s criminal codes for criminal litigators, property codes for insurance litigators, or commercial codes for business litigators. However, trial lawyers require a set of skills that transcend these codes.

These skills include:

• Understanding how to pick jurors who will be sympathetic to their client’s cause.
• Skillfully questioning witnesses in court to extract favorable evidence.
• Eliciting key information from their own witnesses to strengthen their case.
• Crafting persuasive opening and closing arguments.
• An ability to think on their feet, deploying improvisational strategies as situations in the courtroom evolve.
• Thriving under adversarial pressure, keeping a cool head when facing tough opposition.

Moreover, trial lawyers need to be well-versed in the ‘rules of the game,’ which are the practices that govern how a trial is conducted. These are not necessarily written in any legal code but are crucial to successfully trying a case. Some trial lawyers are also litigators, but the skills required of a trial lawyer are relatively rare in the legal community.

How to Spot a Trial Lawyer

You can identify a trial lawyer by looking at their recent case history. A trial lawyer will have actual verdicts listed among their results, not just settlements. You can also simply ask them—a good litigator won’t mislead you about their willingness or ability to go to trial.

Qualities of a Good Trial Lawyer

A successful trial lawyer often possesses a unique blend of both hard skills related to law practice and soft skills that center around personality and character. Here are the qualities that often distinguish great trial lawyers:

1. Strong Communication Skills: Above all, a trial lawyer must be an excellent communicator. They should be able to articulate their client’s position, arguments, and evidence clearly and persuasively to the judge and jury. Additionally, they must also be effective listeners, able to quickly grasp and respond to the opposing counsel’s arguments and the questions posed by the judge or jurors.
2. Thorough Understanding of the Law: A good trial lawyer is well-versed in legal theories, statutes, and precedent cases. They should have a strong grasp of both the substantive law relevant to their client’s case and procedural law, including rules of evidence and procedure.
3. Critical Thinking: The ability to analyze and evaluate complex information quickly and accurately is crucial. This includes identifying weaknesses in the opposition’s argument, foreseeing potential challenges, and formulating effective strategies in response.
4. Adaptability: Courtroom situations can change rapidly, and an effective trial lawyer must be able to adapt their strategy on the fly. This requires a high degree of flexibility and creativity.
5. Resilience and Perseverance: Trials can be long, exhaustive, and stressful. A good trial lawyer must have the emotional resilience to withstand the highs and lows of a trial and the perseverance to continue fighting for their client’s interests, no matter how challenging the situation.
6. Preparation and Attention to Detail: Meticulous preparation is often the key to winning a trial. A good trial lawyer is one who pays attention to every detail, anticipates possible challenges, and is well-prepared to address them. They leave nothing to chance.
7. Empathy: While it might not be the first quality that comes to mind, empathy is vital for a trial lawyer. They need to understand their client’s perspective fully to represent them effectively. Moreover, showing genuine empathy can make a trial lawyer more relatable and persuasive to the jury.
8. Integrity: Finally, the best trial lawyers uphold the highest ethical standards. They exhibit honesty and integrity in all their professional dealings, respecting the law, the courts, their clients, and their colleagues.

While this is not an exhaustive list, these qualities provide a robust framework for understanding what makes a good trial lawyer. However, it’s important to note that each lawyer is unique, and some may bring additional qualities to the table that make them particularly effective in trial settings.

The Case for Calling a Trial Lawyer Upfront

Let’s consider a couple of scenarios. You’re in a car accident, and the insurance company knows you’ve gotten a lawyer, which means they’ll need to calculate the risk of failing to settle your case.

Scenario one: you hire a litigator from the outset. The insurer sees this and knows you’re not likely to take this to trial, which means there is less risk for them in giving a low offer. The litigator will likely recommend you take it. The best-case outcome here would be the litigator hiring a trial lawyer to handle your case in court, resulting in a larger win, but also taking more time and costing more overall.

Scenario two: you hire a trial lawyer from the outset. The insurer sees this, and it raises their costs significantly if they offer too low a settlement—trials are, after all, expensive. To mitigate this risk, they have to offer a larger settlement. So, just by hiring a trial attorney from the start, you’ll likely get a larger result, regardless of what kind of case you have.

The more and larger cases a trial lawyer has won, the larger an insurer’s calculated risk will be, thus increasing your potential settlement. And, of course, your trial lawyer will know if the insurer’s offer is comparable to what you might win in court.

So, the world of law is not one-size-fits-all. If you’re facing a trial, remember, not all lawyers are trial lawyers, and the skill set required for each varies greatly. The right trial lawyer can make all the difference in the outcome of your case.