Civil Litigation
Experience and Results
HOUSTON, TEXAS | 713.526.1801

Selecting Counsel

The selection of competent litigation counsel is the first, and perhaps, single most important decision a client can make when litigation cannot be avoided. The choice of counsel can affect, and sometimes determine, the ultimate result in a matter. The State Bar of Texas reports that at the end of 2008 there were over 75,000 licensed attorneys in the State of Texas.1 This great number makes finding quality litigation counsel all the more difficult. When searching for a trial attorney, start by soliciting attorney recommendations from other professionals, friends, family, or persons who may be knowledgeable about litigation matters. Meet with and question the perspective attorney about their background, experience, proposed strategies, anticipated costs, and retention requirements. When interviewing litigation counsel for hire, consider these four factors:

1. Competence in the subject matter.  First, the client should inquire whether the attorney has actually tried any cases. Depending on the size of the case or the client's budget, that answer may be important. Second, consider whether the attorney has experience in the subject matter at issue in the case. It is not always necessary for a trial attorney to have specific experience in the subject matter, but it is an area that should be discussed.

2. Course of Action and strategy. Successful results in litigated matters are often determined by which party's attorney identifies and exploits the strategic weakness of the other party's case. Early identification of these strategic points is crucial to cost effective presentation of the case. When interviewing attorneys for your case, pay close attention to whether the attorney clearly understands your goals for the case, and can articulate a proposed strategy to achieve your goals. If the attorney can not articulate your goals, strategy, and proposed course of action, then the attorney probably does not have the requisite skill to effectively organize and present your case at trial.

3. Cost. Our experience shows us that an attorney's hourly rate is not necessarily indicative of the attorney's skills as a litigator or trial attorney. Hiring a large firm or high-priced attorney does not guarantee any particular result except large legal bills. Hourly rates can vary greatly even in the same city, so shopping around can be advantageous. Your attorney should be able to give you a rough idea of the cost involved in any particular case based on the work expected in the matter. This can give you an idea of the total cost that may be incurred based on the strategy proposed by the attorney. You should also get an understanding as to whether you might be able to recover your attorneys' fees should you prevail in the case.

4. Comfort level. When interviewing counsel, evaluate whether you would be comfortable working with the attorney, whether you could trust their advice, and whether you would trust that attorney to present your case effectively at trial. Because client participation is essential in the effective presentation of the case, the client and attorney need to be able to work well with each other. If you do not have trust or a high comfort level with the attorney, then seek other counsel. Litigation is stressful enough without the added pressure of not trusting or liking your own attorney.

Once you have selected you litigation counsel, you may be asked to sign a representation agreement to engage the attorney. The representation agreement should reference the matter and identify the terms by which the attorney is to be compensated and other details of the representation. Depending on the type and size of the matter, the attorney may also ask you to pay a retainer in advance to secure payment for the attorney's services. The use of the representation agreement and amount of retainer vary widely by attorney and firm. Accordingly, it usually pays to shop around until you are comfortable with the attorney and the terms of the engagement.

1 State Bar of Texas Department of Research and Analysis, State Bar Members: Attorney Statistical Profile (2008-09).

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