The Trial Attorney: Why You Shouldn’t Settle for One Who Will Only Settle

When someone asks me what kind of law that I practice, I answer “civil litigation.” The response is usually a puzzled-then-accepting-without-questioning look or the question: “What is that?”

The civil legal arena covers a broad area that does not include criminal or family law. Beauregard, Burke & Franco has handled the whole gamut of civil cases. There’s the classic personal injury suit, be it a motor vehicle accident, or a slip and fall; or an employment case, which can include contract disputes, wrongful termination, and discrimination, or wage claim violations. Then there are wrongful death suits and constitutional law violations, property, contract, and commercial lease disputes, medical malpractice claims, defamation, etc. – if a lawsuit may be or has been filed, BBF has likely handled such a case.


Not many people realize that a true trial attorney is a rare breed – a huge amount of attorneys advertise themselves as civil litigators or trial attorneys, even if they rarely if ever try cases. One of my father (Philip Beauregard)’s favorite anecdotes from a legal malpractice case (yet another in the civil litigation umbrella!) when he deposed a “civil litigation” partner at one of the behemoth Boston firms. The attorney proudly referred to the many cases he had handled over his years of experience. When my father posed the ever-important “And, Atty. [X], how many cases have you tried to completion before a jury?” The diminutive response? “1.” Atty. X then answered the same to how many cases he had tried to completion before a judge. So, in Atty. X’s many years and status of a partner specializing in civil litigation in a major firm in Boston, he had tried 2 cases to completion!

Why does this happen? Well, for one thing, you have to have the personality type that is willing to, nevermind enjoy, trying cases. For anywhere from a few days to a few weeks, you are under a microscope in a courtroom. You are worrying about convincing the judge or the jury to take your side. With a jury, you have a variety of personalities that you must reach, crafting your style so you don’t overwhelm with information (how can I explain this concept without legalese?), or bore them (why doesn’t juror #4 seem to be super excited to learn why the rule of perpetuities doesn’t apply to this contract?). You ask yourself if you are being uptight in your presentation, or too collegial, too passionate (if your emotions are involved they may not believe that your case is factually correct!) or too distant (she doesn’t believe in her case!). You try to read your witness to see whether a friendly approach will get them to spill the beans or if they need sternness to give you want you want. All the while, you must above all else maintain credibility and fairness, and be ready to explain when the judge is calling on you to instantly explain the complex legal theory and statutes you’ve committed to knowledge.

Recent statistics say that 95% of pending lawsuits end in pre-trial settlement. Pre-trial settlement options are a crucial consideration in all lawsuits, and lawyers have the duty to analyze and present to you all pros and cons of settlement. As part of that analysis, expect to consider the costs of litigation, the likelihood of success, and the emotional toll some cases can take on litigants.

What should never be part of the equation is your attorney’s willingness to actually try a case. The civil litigator MUST have the skills (and stomach!) to be a trial lawyer. The motivation to settle a case should not come from the desire to avoid trial for lack-of-nerve reasons. A settlement should not result in less than what can be had from the other side simply because they see that your attorney is not willing to face the tribulations of trial.

Beauregard, Burke & Franco’s attorneys have considerably more than Atty. X’s 2 trials under each of their belts. We are ready and happy to try your case when it’s in your best interest.

by Adrienne Catherine H. Beauregard-Rheaume