US Commercial Disputes That Go All the Way to Trial

Cases which cannot be settled are often those where the parties have fundamentally different views on the value of a case. Another important factor is the financial circumstances of the parties. Sometimes, a party will have great confidence in its position on a key legal issue it lost earlier in the case (something decided on summary judgment or on a motion to dismiss). The risk of a trial loss is substantially mitigated by the likelihood of an appellate victory.

All types of cases can go to trial, it can be an antitrust case, a fraud case, a contract dispute, shareholder or bondholder disputes, an IP dispute, etc.

Even where a case has been progressing for several years, and where the client feels their lead lawyer has been doing a fine job, the realisation that the case will actually go to trial can be a sobering moment. A firm itself may want to add the firepower of a specialist trial attorney.

In a complex, high-stakes case, even a great lead trial lawyer may not be enough – a diverse, well-structured team is vital. For example, a lawyer focused on damages, another focused on liability experts and another focused on legal issues and jury instructions.

Consultants who, under the confidentiality protections of the attorney-client privilege, run surveys, focus groups and mock trials, can develop themes and assess likely juror reactions. Retired judges can offer something similar for bench trials.

Good graphics are essential, there are studies showing 85% of communication is non-verbal. Graphics are something most lawyers get wrong: they use too many and they are jammed with too much information.

While many litigators are experienced in preparing witnesses for depositions, these are quite different from trial testimony. A trial witness will affirmatively tell the client’s story and an experienced courtroom advocate shapes the witness preparation to account for that.