role of in-house counsel during trial

Ten Things – What Should In-House Counsel Do During Trial?

Trials are rare.  Like wins for the Dallas Cowboys or finding gold on Oak Island (seriously, guys give it up!).  If you have been practicing law long enough you know that most commercial litigation never goes to trial (at least here in the USA). Disputes typically get settled either through mediation or on the eve of trial.  Unfortunately, everyone spends a lot of money and time before that eventuality occurs.  This is why it is important for in-house lawyers to properly explain the litigation process to the business, especially to senior management.[1]  If they know what’s likely to happen, odds are good you won’t get yelled at (well, not yelled at as much). As I have noted before – litigation is a fool’s game.  But, it is a game that every in-house lawyer will likely have to play at least once.  And, despite the cost, the risk, the smell, and the general messiness of it all, every once in a while, cases go to trial.

Pre-Coronavirus, this meant everyone heading down to the courthouse for a good old-fashioned battle royal (that’s American for “melee”). In-house lawyers tagged along, even though they really didn’t have much to do in terms of actually putting on/defending the case.  Still, they do have a role.  A very important one. And when the “Great Pandemic” passes, and the courts reopen, trials will pick back up and in-house lawyers everywhere will need to be prepared in case their company is actually part of an honest to goodness trial.  If you have never been part of the process before, it can be intimidating and a bit scary – and you will likely be unsure just what the hell you should be doing other than staying out of the way.  I have been part of many trials as an in-house lawyer and this edition of “Ten Things” will set out some of the things in-house lawyers should be doing at trial:[2]