A DIFFERENT KIND OF TAKEOVER: Here are some ideas for a trial lawyer taking a colleague's case to court

By Matthew L. Lalli

There is a joke in large law firms that making partner is like winning a pie-eating contest in which the prize is more pie. If you have a low-to-moderate appetite for pie, the prize is not worth the effort. The same could be said of a practice niche I fell into somewhere over the past 30 years — taking over cases that are about to go to trial. Fortunately, I really, really like pie.  

Taking over a case shortly before trial — “shortly” being a relative term — is something I have been asked to do on numerous occasions. The request has come from partners in my own firm, lawyers in other firms who want to co-counsel and clients who have grown dissatisfied with their current counsel. 

Most clients — and some lawyers — do not begin with a trial in mind. Typically, clients are looking for the quickest and least expensive resolution possible, and that frequently means an early settlement or dispositive motion. However, often the early settlement effort ends in an impasse and the motion is rejected for disputed issues of fact. Or sometimes the emotions or principles or dollar value on either side is too great to compromise and a trial becomes inevitable. At that time, it is not uncommon for clients and lawyers to begin to consider a transition in counsel. 

There are reasons not to make a change in lawyers just as much as there are reasons to do so. Those reasons mostly pertain to cost and uncertainty about whether a change is necessary. This article presents some tips to consider if you are a client wondering how to get over that hurdle, or if you are a trial lawyer faced with a takeover request.

1. Cost. Making a change in lawyers will cost more money, but not as much as you might think. Whether the takeover comes during discovery, motion practice or literally right before trial, the trial preparation tasks largely are the same whoever is performing them. Depending on the size of the case, it will take the new trial team some time to get up to speed. For example, in a significant case that will take two or three weeks to try, an experienced trial team can get into a position to continue discovery or perform pre-trial tasks within 100 hours or so. Also, if you have an experienced trial team with well-developed procedures, it can make up quite a few of those 100 hours with pre-trial preparation efficiency.

2. Transition. Moving from one lawyer or law firm to another can be awkward, but once you get past the first telephone call, the transition almost always is smooth. Whether prior counsel withdraws immediately, remains counsel of record for a transition period of weeks or months, or remains on the case as second chair, the transition begins simply with obtaining the file. Even when prior counsel withdraws immediately, you should ask for permission to call if questions arise, because questions always arise. Prior counsel can be helpful in providing important information about opposing counsel and judges, caution about a witness, provide thoughts about key documents, or present ideas they have for trial strategy.

3. Understand the scope of the case. Knowing the issues in dispute, what is at stake, the number of documents in production, the number and identity of fact and expert witnesses and the anticipated length of trial is imperative. In all but the simplest cases, you cannot accomplish a takeover without a deep bench and knowing the scope will allow you to staff the case appropriately with your partners, associates and paralegals.

4. Begin with the end in mind. In every trial, both sides will have enough evidence to support their theory of the case. But it is the best story that will win. Whether the case is large or small, you should begin by preparing a case theme outline that will turn into an opening statement. This may seem counterintuitive, but beginning with the big picture will help you as you process and prepare to present the law and the evidence in a short period of time. The case theme outline always begins with a summary that contains the complete story in four or five paragraphs. If you cannot tell your story in summary fashion, your story is not simple enough for trial.

5. Begin at once to prepare the jury instructions and special verdict form. Preparing the jury instructions and special verdict form early is even more important in a takeover case. You need to prepare the case from the jury’s point of view and the jury instructions and the special verdict form are the container into which you will fit the evidence. Knowing the correct law, and the areas where the law is not clear, is also necessary for the case theme outline and the trial story.

6. Attack the evidence and the law from the top down. The sequencing inherent in the Rules of Civil Procedure is to build the case from the ground up, one brick — or one piece of evidence — at a time. That also is the natural inclination of most lawyers. You do not have that luxury when you take over a case close to trial, nor does the client want to pay you to start over. The best way to get your arms around the facts and the law is to build from the top down rather than the bottom up. Use what prior counsel already has developed. Start with the complaints and counterclaims, but after that you should read the most recent filings first, whether they are court orders, summary judgment papers, mediation statements, case evaluations or discovery motions. From there, you should understand the depositions, deposition exhibits and then the broader database of documents.

7. Get to know the trial witnesses and evidence. In a takeover situation, especially when you have not participated in discovery, you must make a conscious and concerted effort to identify and organize the evidence before trial. Meet and interview as many witnesses as you can to assess how they will present to a jury, which often comes across differently in person than on reading a cold transcript. Identify the documents you need to tell your story and determine how, when and through which witnesses you will introduce them into evidence. 

8. Embrace the advantage of the takeover. One of the great advantages of taking over a case close to trial, building the case theme from the end rather than the beginning and attacking the evidence from the top down, is that you will have the same perspective and orientation as the jurors. Jurors hear and understand a case on a level much higher, with much less detail and with fewer nuances than the lawyers who build and present the case. Often trial lawyers have command of so much detail that they let it get in the way of the simple story the jury needs to hear. With a takeover, you usually don’t have time to amass that level of detail. The takeover lawyer needs to learn to embrace the case on the same level as the jurors see it. This does not mean it is acceptable for the lawyer to go in unprepared and simply wing it. But you also can take comfort in having the same perspective as the jurors. 

Matthew L. Lalli is a trial and litigation attorney with Snell & Wilmer in Salt Lake City who has tried dozens of cases in courts and arbitration tribunals in Utah, California and throughout the United States. He is the firm’s litigation practice group leader, a member of the firm’s ethics committee and loss prevention counsel to the firm.