Civil Litigators… In the Beginning

Having employed law students and new lawyers for almost thirty years, I find their perceptions worth sharing for what it says about the practice of law as opposed to their expectations. At the outset, let me point out that these are talented and earnest people. 

In general, civil litigation is not what they expected after law school. It seems that practical issues come as a bit of a shock to rising or newly graduated law students.

First, I believe one major misconception of students going into various areas of civil litigation is a certain obliviousness to the role that insurers play. Yes, the opponent will likely be either another person or a corporate entity of some kind, but the defense of the case is driven by the party’s insurance company. In contrast, this is probably a small issue for most students, since it has little to no effect on the substance of what they learned in the classroom.

Secondly, although many students are aware that a majority of cases settle before reaching the courtroom, those seeking their first job in civil litigation probably lack an understanding of the process by which such settlement agreements are reached. Courses such as Civil Procedure and Evidence explain the principles of pre-trial and trial processes, but what about the time spent on a case before the complaint is actually filed? Frequently, this “intake” period is largely left to the imagination of most students because in a legal sense, very little actually happens. No motions are filed, no court documents are shared or discovered. However, this period can be very determinative as to the success or failure of a case, whether settled or litigated at trial. The period is spent objectively reviewing documents such as medical records, contacting and corresponding with insurers, gathering information about the client’s ongoing treatments, work absences, and, most of all, theories of liability. In many cases, it may also involve gathering experts who will provide vital insight. Most first and second year procedural courses begin their pre-trial focus on the filing of the complaint and everything that happens afterwards, so it seems reasonable that these introductory stages might prove surprising.

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Robert I. Feinberg

Licensed since 1982

Member at firm Feinberg & Alban, P.C.

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AV Preeminent

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Robert I. Feinberg

Licensed since 1982

Member at firm Feinberg & Alban, P.C.

AWARDS

AV Preeminent

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