Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Getting the most out of local counsel

If you have ever litigated a case in a jurisdiction where you are not admitted, you have probably been confronted with a local court rule requiring you to associate with local counsel. No doubt, you have also heard (or made) the oft-repeated joke that such rules are nothing more than “full employment acts” for the local bar. As attorneys, we tend to view the involvement of local counsel as something to be minimized. But if we take a step back, we can probably all recall a particular insight or piece of advice from local counsel that surprised and helped us. And if we approach the local counsel relationship in a purposeful way, we can transform this burdensome obligation into a valuable resource.

Keep these four tips in mind for getting the most out of local counsel:

Seek local counsel’s advice early. In every case, you make a number of strategic decisions that can dramatically impact the outcome of your case. For example, you may decide to file your case in state or federal court. You may choose between a jury or bench trial. In federal court, you may also decide to consent or not consent to trial by a magistrate judge. You can research these issues online and find out as much as you can about the local judges or jury pool. But if you are litigating against counsel who regularly practices in the jurisdiction, you will almost certainly be making these important decisions from a substantial informational disadvantage.

Local counsel can provide valuable help with these decisions. But often, we wait too long to seek local counsel’s advice. For example, the first time consent to a magistrate judge or the selection of a mediator is discussed with the other party, you may not have any meaningful information about the individuals being considered. As out-of-town counsel, it can be easy to get talked into a particular judge or mediator based on the representations of your opponent. If you talk with local counsel about these issues early on, by contrast, you can make informed decisions.

Let local counsel in on your secrets. You can be diligent in asking local counsel about any formal rules of practice you are unsure of and the strategic decisions upon which you would like their input. But as the saying goes, “you don’t know what you don’t know.” There may be unwritten customs in the jurisdiction that no amount of research would disclose. There may also be issues triggered by your case, or the way you are litigating it, that you have no idea to ask about. This is why it is important that local counsel understands enough about your case to be able to spot potential issues and caution you against dangers before they occur.

Unfortunately, local counsel often only sees the “public side” of your case: the final drafts of pleadings and motions that are ready to be filed. He or she is not always informed of the risks, uncertainties, or unfavorable evidence that is lurking beneath the surface. Without this information, he or she is unable to provide advice and caution about the issues that may prove most important or damaging in your case. Make sure to inform local counsel about the strengths and weaknesses of your case.

Find local counsel who is like you. Local counsel will never know your case or your client as well as you. But there are obvious and immediate benefits to hiring counsel with experience in the same area of law as you. If you are litigating an employment dispute, for example, a local employment law attorney will know not only if your judge is going to “blue pencil” your non-compete provision, but also how the judge is likely to do it. Local counsel who practices in the same area of law is also more likely to know the opposing counsel you will be litigating against, as well as the local experts or mediators in the subject area of your case.

It is also helpful to find counsel who is similar to you in style and experience. If you are handling a data-intensive patent suit, you will want to work with someone who is well-versed in local rulings about electronically stored information and expert witnesses. On the other hand, if you are representing a client who never settles, a local attorney who handles cases that are “too big to try” will not be helpful, no matter how sophisticated and talented he or she may be. It will instead be much more valuable to find an attorney who has argued motions in limine before the local judges and tried cases before the local jury pool.

Make use of local counsel’s entire network. You may expect that local counsel will be able to immediately answer your every question about local judges or procedures as soon as you call. But in reality, it may be local counsel’s secretary who is the expert on the process for scheduling motion hearings with the court. It may be that local counsel’s paralegal can provide you with a local form or protective order far faster than his or her boss. These people may also be available at times when local counsel is out of the office or tied up on another matter. Have a discussion with local counsel early in the representation about who is the best resource for different tasks, and ask if there are issues that you can contact support staff about directly.

Finally, encourage local counsel to tap his or her own network of colleagues and peers. If you were trying a case in Minnesota before a judge that you had never appeared in front of, you would not limit your due diligence to the experiences of a single colleague. You would instead reach out to all of the attorneys in your firm and your other peers and classmates in order to gather as much information as possible. Encourage local counsel to do the same, and give them adequate time to deliver. It may be that valuable advice about a judge, opposing counsel, or legal issue is just an email away, or sitting in the office down the hall waiting to be discovered.

DAN ELLERBROCK is a shareholder with the law firm of Gregerson, Rosow, Johnson & Nilan. In addition to his practice in Minnesota state and federal courts, Dan frequently litigates cases in other jurisdictions. He thanks the many local counsel he has worked with for their invaluable advice and assistance.

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