Choosing Trial Counsel: What General Counsel Should Actually Look For

I have spent more than three decades trying cases for sophisticated clients facing serious litigation. I have also spent that time watching general counsel and corporate executives make decisions about which trial lawyer to retain when bet-the-business matters arrive. The decisions they make are often informed by the wrong factors. The brand of the law firm, the prestige of the firm’s brochure, the number of associates the firm can deploy, the firm’s recent press coverage on high-profile matters — these are the factors that drive many engagement decisions, and these are the factors that often lead clients to retain trial counsel whose actual qualifications for the specific matter at hand are mismatched to the task.

This is the capstone of a series of articles I have written for general counsel and senior executives at sophisticated companies. The earlier articles addressed the substantive practice areas in which I have spent my career — SEC investigations, FINRA enforcement, private placement disputes, parallel proceedings, FCA defense, board-level crisis management, SOX litigation, arbitration, appellate strategy, and cross-border enforcement. This final piece addresses the question that frames all of those practice areas: when the matter arrives, how should general counsel choose the trial lawyer who will defend it?

The answer is not the answer that the legal directories and the marketing materials suggest. The answer requires general counsel to ask different questions, evaluate different evidence, and exercise different judgment than the conventional retention process produces. What follows is the framework I would apply if I were on the other side of the table, evaluating trial counsel for a matter where the outcome will determine the company’s future.

Choosing Trial Counsel Starts With First-Chair Experience

The single most important distinction in evaluating trial counsel is between lawyers who have actually tried cases as first chair and lawyers who have worked on litigation matters in supporting roles. The distinction is not a snobbery about courtroom experience. It is a substantive distinction about the skills the lawyer has developed and the situations the lawyer has actually navigated.

The first-chair trial lawyer has stood in front of a jury and conducted the cross-examination that the case turned on. She has made the strategic decisions about which witnesses to call, which exhibits to use, and which arguments to make in closing. She has dealt with the unexpected developments that every trial produces — the surprise witness, the ruling that excludes the centerpiece of the defense, the juror who falls ill during deliberations. She has been responsible for the outcome in a way that supporting counsel never is.

The litigation partner whose practice has been built on motions, depositions, settlement negotiations, and the supervision of associates conducting trial work has different skills. These skills are real and valuable, but they are not the same skills. The decisions made under the pressure of trial are different from the decisions made in the deliberate environment of pretrial litigation. The judgment developed over a career of first-chair trial work is different from the judgment developed over a career of trial preparation that did not include actual trials.

General counsel evaluating trial counsel should ask specifically about the cases the lawyer has tried to verdict. Not the matters that settled on the courthouse steps, not the cases where the lawyer was second chair to a more senior partner, not the regulatory matters that resolved through negotiation. Cases tried to verdict, with the lawyer as first chair. The number is sometimes surprising. Lawyers with impressive litigation pedigrees often have remarkably few cases that they have actually tried. The lawyer whose response to this question is direct and specific has the experience the question is testing for. The lawyer whose response deflects to the firm’s collective experience, or to the lawyer’s involvement in matters that did not reach trial, is telling general counsel something useful about the actual qualifications for the trial work the matter may require.

Choosing Trial Counsel With Specific Experience

Beyond general first-chair experience, the second criterion is the lawyer’s specific experience in the type of matter at hand. SEC enforcement defense is a specialized practice. FINRA defense is a specialized practice. FCA defense is a specialized practice. Private placement litigation is a specialized practice. Each of these areas has its own substantive doctrines, its own procedural frameworks, its own counterparties, and its own community of practitioners. The lawyer who has tried twenty commercial cases but has never defended an SEC enforcement matter is in a different position than the lawyer who has tried fewer cases but has substantial SEC defense experience.

The specialization matters because the substantive expertise affects every decision in the matter. The defenses available in an SEC enforcement matter are different from the defenses available in a commercial case. The procedural framework that governs the matter is different. The counterparty — the SEC staff lawyers — operates by professional norms and incentive structures that are different from those of plaintiff’s lawyers in commercial litigation. The lawyer who understands these specifics produces better outcomes than the lawyer who is learning them on the matter.

General counsel evaluating trial counsel should therefore probe the specific experience that matches the matter. If the matter involves SEC enforcement, the question is how many SEC matters the lawyer has defended, at what stages, with what outcomes. If the matter involves FCA exposure, the question is how many qui tam matters the lawyer has handled, including the sealed-period work that affects intervention decisions. If the matter involves cross-border enforcement, the question is how many cross-border matters the lawyer has worked on and what the lawyer understands about the international cooperation framework that now defines this practice area.

These questions are straightforward to ask, and the answers are usually clear. The lawyer with the specific experience can describe particular matters, particular issues, and particular outcomes. The lawyer without the specific experience generalizes to broader litigation experience, defers to firm capabilities, or describes substantive expertise in the area without operational experience defending matters. The distinction is real, and it is determinative for the outcome.

The Relationships That Matter

The third criterion is the relationships the lawyer has with the counterparties that will be involved in the matter. In SEC enforcement, this means the staff attorneys and supervisors in the relevant Regional Office or in the Home Office division. In FINRA matters, this means the Department of Enforcement lawyers and the National Adjudicatory Council. In FCA matters, this means the Justice Department lawyers in the relevant U.S. Attorney’s Office or in the Civil Division’s Fraud Section. In matters before specific judges, this means the lawyer’s familiarity with the judges and the judges’ approaches to the substantive and procedural issues likely to arise.

Relationships in this context are not the inappropriate kind that compromise the lawyer’s independence or create conflicts of interest. They are the professional relationships that develop over years of working with the same counterparties, in which both sides have established expectations about how the other operates. The lawyer who has worked with the SEC staff for twenty years knows which arguments resonate with which supervisors, knows the institutional patterns that affect resolution discussions, and knows how to engage the staff in ways that produce productive dialogue rather than entrenched positions.

These relationships matter because they affect the conduct of the matter at every stage. The voluntary disclosure that lands well with one supervisor lands differently with another. The cooperation discussion that produces benefits with one staff attorney produces different results with another. The settlement negotiations that can be conducted through senior-level engagement with the regulator are not available to the lawyer who has no senior-level relationships.

General counsel should ask specifically about the relationships the lawyer has with the counterparties relevant to the matter. The lawyer who can identify the specific staff lawyers, supervisors, and senior officials with whom he has worked on prior matters is bringing a resource that the lawyer without those relationships cannot match. This is not the same as asking whether the lawyer can “get to” the regulator — which would be inappropriate — but it is the legitimate question of whether the lawyer has the professional standing in the relevant community to engage with the matter at the senior level the engagement requires.

The Personal Engagement of the Senior Lawyer

The fourth criterion is the personal engagement of the senior lawyer with the matter. Large law firms have institutional models that often produce a marketing partner who pitches the engagement and a different team of lawyers who actually handle the work. The senior trial lawyer who is featured in the firm brochure may be largely absent from the depositions, the witness preparation, and the daily strategic decisions that determine the outcome.

This model is not necessarily inappropriate for all matters, but it is particularly inappropriate for bet-the-business matters where the senior lawyer’s specific judgment matters most. General counsel evaluating trial counsel should ask explicitly about the engagement model: who will be making the strategic decisions, who will be conducting the key depositions, who will be examining the witnesses at trial, and what proportion of the work will be done by the senior lawyer personally versus by the team supporting that lawyer.

The answers vary substantially across law firms and across individual lawyers. Some senior trial lawyers personally handle every significant aspect of every matter they are engaged on, accepting a smaller portfolio of cases in exchange for the personal engagement their clients expect. Other senior lawyers operate as supervising partners who delegate substantial portions of the work to associates and junior partners, providing strategic direction without the personal engagement on the details. Neither model is inherently better. The question is whether the model the firm proposes matches the model the client needs for the specific matter.

For matters where the senior lawyer’s judgment is the engagement’s central value, general counsel should insist on the personal engagement of the senior lawyer in the work that matters. This insistence should be reflected in the engagement letter, in the fee arrangement, and in the staffing protocol agreed upon at the outset of the matter. The general counsel who relies on the marketing promise of senior engagement without converting that promise into operational commitments is often disappointed by the actual conduct of the matter.

The Communication Style That Matches the Client

The fifth criterion is the communication style of the senior lawyer and whether it matches the client’s needs. Some general counsel prefer detailed, frequent communication that keeps them informed of every development. Others prefer summary communication that surfaces only the issues requiring their attention. Some prefer written communication that creates a record. Others prefer telephone or in-person communication that permits more candid discussion. Some prefer to be involved in strategic decisions. Others prefer to delegate strategic decisions to trial counsel with periodic check-ins.

The mismatch between client communication preferences and trial counsel communication patterns is a common source of dissatisfaction in litigation engagements. The general counsel who wants daily updates and gets weekly summaries feels uninformed. The general counsel who wants summary communication and gets daily updates feels overwhelmed. The general counsel who wants to be involved in strategic decisions and is presented with completed strategic decisions feels marginalized. The general counsel who prefers to delegate and is required to participate in every strategic decision feels burdened.

Trial counsel and general counsel should discuss the communication model at the beginning of every engagement, with the senior lawyer’s actual practices made explicit and the client’s preferences accommodated where possible. The discussion does not have to produce a perfect alignment — different communication patterns work for different matters — but it should produce an explicit agreement about how the engagement will work day to day. The engagements that develop friction over communication are usually the engagements where this conversation never occurred or where the senior lawyer’s commitments were not honored.

Fee Arrangements When Choosing Trial Counsel

The sixth criterion is the fee arrangement and what it signals about the alignment between the lawyer and the client. Trial counsel are compensated through various arrangements — hourly billing, alternative fee structures, success fees, and combinations of these — each of which creates different incentive structures.

Hourly billing aligns the lawyer’s compensation with time spent. This can be appropriate for complex matters where the work cannot be predicted at the outset, but it creates the well-known incentive for inefficient work. Flat fees and capped fees align the lawyer’s compensation with task completion, which can produce more efficient work but can also produce shortcuts that affect quality. Success fees align the lawyer’s compensation with outcomes, which can produce strong incentives for diligent work but can create conflicts about settlement decisions.

The specific fee arrangement matters less than the conversation about fee arrangements. The senior trial lawyer who has thought carefully about the fee structure and proposes an arrangement that addresses the specific matter is bringing a thoughtfulness about the engagement that the client should value. The senior lawyer who proposes hourly billing without discussion of efficiency, or alternative fees without discussion of scope, is missing the opportunity to structure the engagement in a way that aligns the lawyer’s incentives with the client’s interests.

The Final Test

After all of these criteria, the final test is the senior lawyer’s judgment as expressed in the initial conversations about the matter. The matters that justify engaging senior trial counsel are matters where the lawyer’s judgment will affect every strategic decision and ultimately the outcome of the matter. The general counsel who is evaluating trial counsel should attend carefully to the judgment the lawyer is exhibiting in the initial conversations.

The lawyer who immediately understands the matter, identifies the key issues, and offers preliminary thoughts about strategy is exhibiting the judgment that will be deployed throughout the engagement. The lawyer whose initial reactions are generic, whose questions miss the specific dynamics of the matter, and whose proposed approach is templated rather than tailored is exhibiting different judgment. Both lawyers may have impressive credentials and substantial experience. The lawyer whose judgment in the initial conversation matches the matter is the lawyer who will produce the outcome the matter deserves.

This is the practical guidance I would offer to general counsel evaluating trial counsel for serious matters. First-chair experience that actually exists. Specific experience that matches the matter. Relationships that affect the conduct of the engagement. Personal engagement of the senior lawyer in the work that matters. Communication that matches the client’s preferences. Fee arrangements that align incentives. And judgment that is evident from the first conversation. These are the criteria that produce the engagements that protect the company in the matters that determine its future. The conventional criteria — firm brand, partner directory rankings, recent press coverage — describe the marketing of legal services. The criteria I have offered describe the substance of legal services. Sophisticated clients should know the difference, and they should choose accordingly when the matter that defines their future arrives.

That concludes this series. I am grateful to the readers who have engaged with these pieces over the past several months, and I welcome continued dialogue about the substantive practice areas they address. The work of defending sophisticated clients in serious matters is the work I have done for more than three decades. It remains the work I find most worth doing, and the standards I have described in these articles are the standards I hold myself to when clients trust me with the matters that define their futures.

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Otto K. Hilbert, II is a Trial Attorney with AEGIS Law. He brings over 36 years of first-chair trial and appellate experience to representing clients in complex commercial litigation, securities defense, and regulatory enforcement matters. He has tried cases in 23 states and is admitted before the United States Supreme Court and multiple United States Courts of Appeals.

This article is provided for general informational purposes and does not constitute legal advice. Readers facing specific legal matters should consult qualified counsel.