Last Rev. 03/15/19 07:402am

Local Counsel Explained

Major commercial litigation, including antitrust litigation, is very complicated. For example, The federal courts from 1936 to the present have engrafted a lot of antitrust doctrine onto the relatively simple federal antitrust statute known as the Robinson-Patman Act. See Wish List of Statutory Reforms Needed to Make the Robinson-Patman Act Workable. The lawyer primarily responsible for an antitrust lawsuit should be highly experienced with this type of litigation, to be able to use this experience for the benefit of the client. If an inexperienced lawyer commences an antitrust case alone, such lawyer will have a lot of learning to acquire and the failure to have the learning when needed could wind up hurting the client's case. Let me add, however, that an attorney wanting to do this type of case has to start out with case #1 and should do so, realizing that there is a lot to learn. I am always available (almost always without any fee) to give my insight to any (non-opposing) attorney who calls.

The best way to handle a major commercial lawsuit to be commenced in a court outside of New York City, including an antitrust suit, in my professional opinion, is to have two lawyers. One is your own local attorney (who has to be qualified to practice in the federal courts if the case is to be commenced in a federal court), and such lawyer should be a good litigating attorney (preferably commercial or civil rights litigation), but he/she need not know much if anything about, or have any experience with, the type of litigation being commenced. If he/she does have the appropriate experience with the type of litigation being commenced, you probably wouldn't need a second attorney. But with antitrust litigation particularly it is very unlikely that any lawyers you might meet would have the desired experience.

The second lawyer can be from anywhere in the United States and he/she should have experience litigating claims under the nation's antitrust statutes or other major commercial claims. I have that type of experience and am willing to work on this type of case, to be brought in the nearest federal court (as to antitrust and some other claims) or state court (non-antitrust claims) in the plaintiff's home state. The local lawyer (admitted to practice law in your state and in the federal courts in your state, if the action is to be commenced in federal court) and I, a New York licensed lawyer, would be the legal team.

I expect the plaintiff to pay the legal fees of the local counsel, and on my part I try to do whatever I can to reduce these costs. Whatever costs there are would be deducted from my share of the recovery after any resolution of the case. The local counsel is needed to sponsor my request to represent you "pro hac vice" (for this case alone), and to assist in preparing requests for an extension of time to respond, and to comply with local court rules. The time to be spent by local counsel is not much and it is better to compensate the local counsel by the hour rather than to give the lawyer a percentage of the recovery. It makes it much easier to find a lawyer if you pay the lawyer by the hour, and it prevents overcompensation which would result if you gave the local counsel a percentage. The local counsel would want too much and make your case far less difficult to maintain if my share is reduced. These cases are tough enough without giving away the percentage I need to be able to maintain this type of case, assuming it is to be commenced on some type of contingent-fee basis.