Mestaz Law Newsletter – March 2022

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Choosing the Right Litigator Makes All the Difference

You need the right representation to be successful in your litigation. But how do you choose between the different lawyer options you can find? In this month’s educational article, we discuss choosing between a subject matter expert and a great trial lawyer. To find out which you may want to choose, read on!

And if you need expert representation, contact Mestaz Law to learn how the firm can best represent your interests.

 

 


Choosing a Litigator: Subject Matter Expert or Great Trial Lawyer?

Most businesses will find themselves in litigation at some point. In deciding who to hire, a question often arises: Do I hire a subject matter expert in the issue at hand or someone who is regarded as a “great trial lawyer.” Of course, the perfect hire is a great trial lawyer with subject matter expertise. But you can’t always get what you want, as a famous sage once said. So how to choose?

The short answer is this: When in doubt, hire the great trial lawyer. That is because a great trial lawyer can typically learn the subject matter area well enough, in the course of the engagement, but the subject matter expert will not become a great trial lawyer by the time your trial rolls around. Also, trial lawyering is, in one sense, its own subject area. Some litigators simply have superior expertise in trying cases.

On the other hand, depending on the circumstances, the subject matter expert may be the better choice.

Why a “trial” lawyer if most cases settle before trial?

If nearly all cases settle before trial, why worry so much about how good the litigator is at trying cases? The answer is simple. Trials are the culmination of litigation. Everything done pre-trial is done with an eye toward trial—gathering and organizing evidence for display, examining witnesses in deposition, paring down or defining the issues through legal briefing. But again, if most cases do not end in trials, what difference does it make?

The answer is leverage. Good settlements are obtained through leverage. In litigation, your lawyer obtains leverage by demonstrating to the other side that, in fact, he or she is going to win the trial, so the other side settles on favorable terms to avoid the trial. Leverage can be had through a lawyer’s reputation as a great trial lawyer, or their demonstrated pre-trial mastery of the facts, evidence, and oratory/witness examination skills. In other words, they have shown that they are likely to win—so they can probably resolve the matter in the client’s favor with a pre-trial settlement. And if trial is necessary, they are likely to be successful.

Why a subject matter expert?

Litigation has trended toward subject matter expertise, rather than general litigation. Part of that is business and marketing driven—“niches lead to riches.” Part of it relates to the complexities of our technological, interconnected world—international laser patent litigation anyone? Whatever the reason, having niche knowledge in a particular area can make the lawyer better and more effective than if they have a broader, generalized practice. And of course, it helps clients identify who has experience in their particular matter.

Here is an example. If you found yourself in a lawsuit for misappropriation of trade secrets, would you hire a lawyer who narrowly focuses their practice on trade secrets litigation, rather than someone known as a great trial lawyer but who has limited experience in trade secrets litigation? Maybe… but maybe not. Again, trial lawyering is, in a sense, its own subject matter area, where some just have greater trial expertise, despite knowing less about, say, trade secrets.

Considerations: Subject matter expert versus great trial lawyer

A lawyer may have subject matter expertise in the issue central to your lawsuit, whether that is trade secrets, aviation leases, or banking regulations. Here are the important considerations on whether to hire the subject matter expert or the great trial lawyer.

  • Budget. Sometimes the choice is easy – you can afford lawyer A but cannot afford lawyer B. Typically, in that scenario, lawyer A is the subject matter expert because, having litigated the same types of cases over and over, they know the ins and outs, know the law, and can efficiently litigate your matter. (Take the issue of “fair use” in copyright litigation — a subject so complicated that the Library of Congress, attempting to provide guidance to authors, can do nothing but link to hundreds of court decisions going back to the 1840s.) On the other hand, you will spend a small fortune on the great trial lawyer who has to learn that subject matter area, or would have to hire someone who has that expertise. The more esoteric the matter, the more expensive the learning curve.
  • Damages/money at issue. Assume there is a lot at stake, perhaps seven figures. The winner will get their fees from the other side, and you can afford to hire the great trial lawyer. In that case, the great trial lawyer is the better hire. They can even engage a subject matter expert as a consultant, or spend time (and money) learning the subject matter area. When the jury walks in, and you have a week or so to win them over, you will not regret your decision.
  • Sliding scale. The choice is not always black or white. The subject matter expert may be a competent trial lawyer, though perhaps without the reputation or skill level of the great trial lawyer. It is certainly reasonable to go with that subject matter expert. That does not mean you should hire the inexperienced or mediocre trial lawyer who happened to write a lot of articles on the subject matter. Ultimately, the lesson is this: Do not forget that trial lawyering matters, and it matters a lot. So make sure that the subject matter expert is competent at that essential skill.

Here are two real life examples:

  • As a young associate in a blue-chip law firm, my mentor was a superstar trial lawyer. On behalf of wealthy homeowners, we sued a city in a land use dispute. The city hired a true subject matter expert – a lawyer who literally wrote the book on the issue we were litigating. My mentor destroyed the other side and leveraged a great settlement. He was far superior at litigation and trial work than the expert, who, despite all of his knowledge, had subpar trial skills.
  • Recently, a potential client called me about a trade secrets case in another jurisdiction. I have experience in that area and felt confident that I could win the case, but the client had budget issues. Even though I was confident that my approach would win outright and recover fees, it was not a match. Instead, I found him an attorney in his area who focused solely on trade secret litigation in that jurisdiction who was clearly competent and likely to handle the case within the budget.

Ultimately, the issue is budget, expense, and the amount at stake. Hiring the great trial lawyer is a luxury. If the budget does not allow that, a subject matter expert with sufficient trial competence is also an excellent option and choice.


The Red Cross and the War in Ukraine

Mestaz Law is concerned about innocent lives being lost in Ukraine, and the millions being displaced from their homes and communities. As long-time Red Cross supporters, we made a donation to the Red Cross, which is providing lifesaving aid to those in need — both in Ukraine and in neighboring areas.

We encourage our readers to read more about what the Red Cross is doing to aid with this humanitarian crisis here. We also encourage those who can, to make a donation to the Red Cross to help in this time of need.

Donate to the Red Cross

Client Success Story

“Dan is such a pro and so smart. He understands how to put together a highly persuasive argument. I wouldn’t want to oppose him! Having him on our team was just a really, really fantastic thing and I felt pretty bad for the poor guy who flew in from Dallas to represent the other side – they got their ass handed to them.”

Eric Markow, Principal
Dual Path


Types of Business Contract Breaches

The purpose of a contract is to define what is expected between the parties to the agreement, and in its simplest form, includes what each is to do and when. Some are more complex and have numerous stipulations, requirements, and obligations. If a qualified business lawyer has not drafted the contract – which we recommend happens – you’ll definitely want one to review anything before you sign and agree to the terms contained within. An attorney who specializes in these matters can draft an agreement that is clear, has your best interests outlined, protects those interests, and minimizes your risk and liability, which is why we strongly suggest you hire such a professional.

Categories Of Breach of Contract

Material

Significant consequences come from a material breach of contract. Assuming a contract has been entered into, two examples of this manner of breach could be: if a business partner agrees to a buyout for the other partner’s interest and then reneges and fails to fund the purchase, or a contractor receives payment in advance for goods or services and then doesn’t perform.

Immaterial

Sometimes minor deviations of an agreed-upon contract occur that, more than likely, do not bring losses that the offended party would consider major. Let’s say a vendor may arrive for the job 20 minutes later than the exact specific time listed in the contract – it would probably be an aggravation, rather than a real loss of any sort.

Intentional And Unintentional

Certain conditions or outright neglect can cause a party to be in breach. An experienced contract attorney (like Mestaz Law) will learn about your specific situation, gather the evidence, and be able to give you the best advice on how to proceed in either situation.

Anticipatory

Sometimes the other party makes clear, either explicitly or implicitly, that they will not or cannot perform their obligations under the agreement, and therefore will soon breach. Although the actual breach may not have occurred yet, a qualified attorney will be able to represent your interests, based on the “anticipatory breach”.

Remedies For Breach of Contract

Most commonly, breaches result in monetary compensation for damages. The wronged party may have endured lost sales or damaged business relationships because the other party did not meet their contractual responsibilities – and money is usually an adequate remedy. Also, Arizona statute A.R.S. section 12-341.01 states that you can recover your attorney fees from the other party if you prevail in the lawsuit for breach of contract.

How To Confront Breach of Contract with a Professional Corporate Lawyer

If you’re in charge of a business, it’s likely that you’ll enter into numerous contracts with employees, vendors, and even partners. While most of these will go off without a hitch, there may be instances where you didn’t get what was agreed upon and signed off on. If this happens to you, don’t wait to consult Mestaz Law. You’ll want us on your side as soon as something with those contracts seems amiss.


 

Mestaz Law is a commercial litigation firm serving businesses, business owners, business executives, and entrepreneurs.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us, though doing so does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. Our description of what we believe to be superior technology and how we win cases reflects our typical approach to litigation, which we believe:  (i) gives us a competitive advantage, and (ii) is responsible for any success we have had. But we do not win every case. Other lawyers may have technology or approaches that they believe gives them an advantage. Also, the results that we have obtained in other cases or that are described in our clients’ testimonials do not guarantee, promise, or predict the outcome of your case, which depends on the law, facts, and evidence specific to it.