Many businesses have a regular law firm that handles most of their legal needs – including occasional litigation. But when you need to litigate outside your home state, you might need to find “local counsel” to help. Selecting an appropriate candidate will be an important step in your litigation strategy.
Local Counsel – What Is it?
Attorneys are licensed in individual states. Some attorneys are licensed in multiple states, but generally not more than a few. So let’s say you’re a business based in New York. A business dispute with a North Carolina company has arisen and either (A) they sue you in North Carolina, or (B) you need to sue them in North Carolina. Your business usually works with an attorney in New York who is familiar with your company and its legal issues but is not licensed in North Carolina and has little or no experience with North Carolina law or the North Carolina court system. You’d like your regular attorney to handle your case. You know and trust that attorney, and the attorney understands your business. But your regular attorney can’t just get a North Carolina law license overnight to represent you in the case. Moreover, even if the license wasn’t a problem, your attorney doesn’t know the idiosyncrasies of an unfamiliar court system and the judges and other personnel who run it. What are you to do?
The answer is “local counsel.” Typically, an out-of-state attorney can get permission to represent you in a “one-off” case in another jurisdiction – if the attorney works along a “local counsel” who is admitted in the court. Finding the right lawyer in a far-away jurisdiction, however, is not always an easy task. These 5 tips will help you find the best person for the job.
1. Experience Counts
While this cliché applies in virtually every context, it’s especially true for selecting local counsel. Your regular attorney is already a smart person who knows how to litigate. What you need from local counsel is someone who has deep knowledge of the players and the customs of the local court – and, ideally, a level of respect in the community that clothes your “unknown” out-of-state lawyer with credibility and integrity. This isn’t to say that every good local counsel has gray hair. A young attorney who recently served as a law clerk to the assigned judge might possess more relevant experience than a random attorney who has practiced for decades. But there’s little value in hiring a local lawyer who doesn’t understand the subtleties of the local system any better than an out-of-state visitor.
2. Find a “Best Supporting Actor”
Another key consideration is whether a candidate is good at playing a supporting role. Some of the most popular and respected lawyers are generally great at what they do, but don’t play “second fiddle” well. Good local counsel should push back on lead counsel’s strategies, if appropriate. But if your local counsel always wants to dominate the legal team, it may lead to dysfunction. A great Robin can be worth more than an extra Batman.
3. Don’t Underestimate the Value of a “Rule Geek”
“Local rules” particular to a certain jurisdiction are often an overlooked part of the law. For instance, while federal courts across the country are subject to the Federal Rules of Civil Procedure, a particular federal judicial district – or even a particular judge – might have special procedural rules or preferences. Different counties in state courts may have similar peculiarities. These local rules can be tedious – ranging from the page limitations on briefs to the procedures for how to file a document “under seal.” Some practitioners forget these rules even exist. But the court may care about them a lot. If a lawyer is a stunning orator but doesn’t know the local rules, he or she is probably not a good fit to serve as local counsel.
4. Clarify Your Budgetary Expectations
In my experience, most arrangements with local counsel go smoothly from a financial perspective. But if you have particular expectations about cost, discuss those expectations with your local counsel from the start. Be aware that the cost of local counsel cannot be reduced to zero. Typically, courts will require local counsel to review documents that you file with the court – even if they were drafted by a perfectly competent out-of-state lawyer. Sometimes, local counsel will also be required to attend hearings – even if another lawyer does all the talking. If a local counsel simply wants to get paid a nominal sum to let you “put their name” on documents, you don’t want them. They likely don’t understand their responsibilities and won’t add value to your team.
5. Got References?
Before selecting a local counsel, consider asking others for a referral. Do you know a company or lawyer in your area who has previously worked with a lawyer in the applicable jurisdiction? Were they pleased with their choice?
An experienced local counsel can not only fulfill requirements necessary to allow your regular lawyer to represent you in another state, but can significantly enhance the quality of your legal team. Choose wisely.
Elliot has over 28 years of experience litigating in state and federal courts in North Carolina. He has served as local counsel in North Carolina and has assisted his clients in selecting local counsel for cases in other jurisdictions.