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Last Rev. 10/29/16 10:50am

How an Attorney's Litigation Experience Can Help the Client

Experience for an attorney is valuable, but why? Here is my answer. The law, as with other professions, has an expertise that exceeds any ability to organize or categorize. An attorney recently graduated from law school may have a better knowledge or, or ability to recall, various doctrines of law. A lawyer with substantial experience may or may not be able to identify a needed doctrine by name, but he/she will often have the professional judgment or insight to know that such a doctrine exists, and then be able to find references to the doctrine and its name.

Experience enables a lawyer to have better judgment when it comes to deciding what to do, what defenses to assert, what priority if any should be given to the selected defenses or to the claims to be made. Years of experience will enable a lawyer to appreciate the probabilities better than a recent lawyer and be able to guide the client accordingly.

Experience enables the lawyer to cut down on the expense of reinventing the wheel. An experienced lawyer needs less training to be able to handle a problem, and can reach a better decision (usually) in substantially less time, and at lower overall cost to the client.

Experience helps an attorney select a court, select defendants, work with co-counsel, make recommendations as to motions to be made and discovery to be requested, provided or objected to.

In antitrust, to give you one good example, I believe I understand why Robinson-Patman Act price discrimination antitrust cases are allowed by most judges to proceed into discovery, even though many or most of the same judges, at the same time, would not allow most claims under the Sherman Antitrust Act or the Clayton Act to go forward. Why do you think this is the case, assuming that I can demonstrate that there is such a dichotomy in treatment by federal judges.

My answer, coming from years of experience, is that claims under the Sherman Antitrust Act and the Clayton Act more or less rely on allegations that an activity is unreasonable, and judges ever increasingly are finding that very few alleged antitrust activities are unreasonable. They undoubtedly read about proposed appointments by the present administration to the U.S. Supreme Court and Courts of Appeals and figure out for themselves that if they decide against a major corporation, the major corporation is apt to take the matter up on appeal and the judge in such event would probably be reversed. If he/she decides against the plaintiff, and if the plaintiff takes the matter up on appeal, the higher court is even more apt to uphold the dismissal. I have heard judges say to the parties (but really directed to the plaintiff's counsel) that if the plaintiff takes the dismissal up on appeal and wins, the judge would be perfectly happy to proceed with the case, but he is going to leave that decision up to the higher court, and not waste his time letting the plaintiff proceed when it is so unlikely, in the judge's opinion, that the higher court would permit the proposed antitrust action to proceed.

On the other hand, as to price discrimination cases under the Robinson-Patman Act, the plaintiff's allegation can be proven with mathematical certainty. The plaintiff alleges in its complaint that the plaintiff is paying 50% more for a specific product from the same manufacturer at the same time as the defendant major retailer, and that the difference in amount is not cost justified by savings for the manufacturer. This allegation can be proven in substance and the federal judge will permit the Robinson-Patman antitrust claims to go forward while dismissing all other antitrust claims.

This is what experience has taught me. You won't be able to find this analysis in any case or text book.

Also, over the years, an experienced attorney probably has learned how to reduce the costs of litigation, or perhaps this is a skill more often developed by plaintiffs' attorneys representing smaller companies that can't afford the costs of a total discovery effort.

Anyway, when looking for an attorney you should look for experience to avoid many potential pitfalls later on.