The following post was originally prepared in response to a question posted on LinkedIn, What is the most important reason to have a lawyer who is a great litigator?

Well, the question is: What is the most important reason to have a lawyer who is a great litigator?

For what purpose? As someone up above said, on your staff, in a courtroom or a cocktail party?

Since I’m a business lawyer, I’ll respond in that context.

IMHO, I think lawyers who have significant business litigation experience are best suited to dealing with business negotiations for the simple reason that every bit of legal advice you get is premised on the possibility that you may have to defend that position in arbitration or in a courtroom. Why is this? Because if I advise you that you should hold out for XYZ contract term or provision rather than settle for ABC provision, the only way that advice makes any sense is on the assumption that “if this issue has to be decided by a judge, then the most likely end result of that process is ________, and you should be prepared for that eventuality.” ALL legal advice is heuristic to some degree; predictive and conjectural. Based on what has happened before in similar situations. It is thus grounded in the possibility that a judge or jury may one day have to resolve a dispute, and seeks to predict how the dispute will be resolved. Legal advice isn’t “wrong” in a vacuum; it isn’t wrong until some authority says it is. If your lawyer has no meaningful “boots on the ground” experience in actually resolving legal disputes, then that predictive conjecture is lacking.

When I draft contract language I am talking to four different audience/constituencies: 1.) The parties who are going to have to live with the agreement, 2.) The litigators who are going to have to advise the parties on their options when the relationship blows up, 3.) The judge who is going to be deciding the summary judgment motion on contract interpretation when the parties to the agreement get into that dispute, and 4.) The Appellate panel that is going to review the decision of the trial judge.

Taking legal advice from someone who lacks experience in talking to three out of four of those constituencies is a bit like taking advice on military strategy from an officer who’d never spent any time in combat.

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