What Is the Difference Between a Litigator and a Trial Attorney?

A litigator handles a lawsuit from start to finish (investigation, pleadings, discovery, depositions, motions and settlement talks), while a trial attorney is a litigator with real experience trying cases to a verdict in front of a judge or jury. Because only about 1% of federal civil cases are resolved by trial, many skilled litigators rarely try cases, so if yours could go to trial, ask how many trials the lawyer has handled as lead counsel.

At a glance

Litigator: building and resolving a case before trial — pleadings, discovery, depositions, motions, mediation, settlement.

Trial attorney: all of that, plus presenting the case at trial — jury selection, opening statements, witness examination, closing arguments.

Why the difference matters

Trials are rare. A 2017 analysis in Judicature, published by Duke Law School, found that about 1% of civil cases filed in federal court are resolved by trial, with jury trials at about 0.7%. It also notes that state-court jury trial rates were below 1% by 2002 and have fallen further since.

So a lawyer can build a strong litigation career while trying very few cases. Federal judge Mark W. Bennett's essay "Eight Traits of Great Trial Lawyers" treats trial advocacy as a distinct skill set from pretrial litigation.

A Winter 2025 article in the ABA's Litigation Journal notes that thousands of cases are still tried in the U.S. every year, mostly in state courts, and that trial skill comes from time in the courtroom.

Credentials that point to trial experience

Some states certify trial specialists. In Florida, Civil Trial Law certification requires at least five years of practice, 50% or more of practice in civil trial law, at least 15 contested civil cases (including jury cases as lead counsel), 50 hours of specialty CLE, peer review and a written exam.

Questions to ask before you hire

1. How many cases have you tried to verdict as lead counsel?
2. Were they jury or bench trials, and in which courts?
3. Who will actually try my case if it doesn't settle?
4. How do you decide whether to settle or go to trial?
5. Does your state certify trial specialists, and are you certified?

Browse business and commercial litigation and personal injury attorneys on Haute Lawyer, including Kevin H. Brogan in Los Angeles and Jonathan Hayes in Atlanta.

This article is general information, not legal advice, and doesn't create an attorney-client relationship. Talk to a licensed attorney about your specific matter.