A trial attorney's strategy

We are already two business days into the New Year, and it has gotten off to a rather slow start.  We have returned from the Holidays well rested and fed, and now we have to face a mountain of mail and other work demands.  With the pressure of our current economic woes, it is not surprising that our clients want money, and they want it now.

Clients often complain to me about the behavior of their trial attorneys.  The complaints range from not returning phone calls to not paying attention to their suggestions as to how the attorney should have tried the case.  It could be a matter of lack of preparation or bad choices.

 When does a strategic choice become an error?  Usually at the end of the case when the clients have lost and the attorney realizes his or her strategy didn’t pay off.  Quite often, a client will complain that the trial attorney failed to present crucial evidence or failed to properly question a witness.  The client may say that the attorney was urged to pursue a certain course of action, but often there is no record of these discussions between attorney and client. 

While strategic choices may result in errors or misjudgments in how the attorney tried the case, typically they do not result in an appealable issue.  I may advise a client that the error they seek to raise is really their attorney's strategic choice, an error which the appellate court will not consider.  If the client has chosen someone who is green at trial or decides not to pursue a line of questioning, there is nothing I can do.  At the extreme end, the attorney's handling of the case may be malpractice.