Posted Jul 01, 2008 01:25 pm CDT
As the number of lawyers being certified as personal injury specialists in Texas dwindled to 17 last year, administrators at the state bar certifying board knew exactly what the problem was: trials—or, more precisely, the lack thereof.
Whether it’s the slow but steady creep of alternative dispute resolution or tort reform or both, jury trials are disappearing from courtrooms in Texas and most everywhere else. And that vanishing act is having a spillover effect on specialty certification programs. Many are coming to realize that, unless they want to go the way of the jury trial, their programs need to change to reflect the realities of modern-day practice.
The decline in trials has made “certification of trial attorneys a little bit more challenging,” says Roberta Hugus, executive director of the National Board of Trial Advocacy, a Boston-based nonprofit that certifies lawyers as specialists in civil, criminal and family law trial advocacy. “We were started over 30 years ago when trials were a lot easier to come by and we crafted criteria for certification that was based on those trials.”
Now, few lawyers can meet the standards required for certification as litigation-based specialists.
To qualify for the NBTA’s trial lawyer certification the group required applicants to have tried a minimum of 15 trials to verdict or judgment, and the trials had to last at least three days each, Hugus says. “But that is not a reality anymore.”
So what’s a certifying board to do?
In the case of the NBTA, offer more certifications. Board president Barry Nace, a Washington, D.C., plaintiffs lawyer, says the group was resistant to changing its criteria for its gold-standard trial lawyer certification. Instead it now plans to offer another certification for lawyers as specialists in civil litigation. It will be for those who “certainly are qualified and capable of doing things short of trial and who don’t get the experience of going to trials,” Nace says.
The Texas Board of Legal Specialization already amended its standards in several of its specialty certification programs, including administrative law and family law, to credit binding arbitration and other ADR experience as the equivalent of completed trials, says executive director Gary McNeil of Austin.
“Probably every year for the last four to five years there has been some discussion of the trial situation and whether there are alternatives to trial that might be considered,” says McNeil. He expects these discussions to continue, noting that if the issues are not addressed, the numbers of lawyers being certified in litigation-related areas will continue to decline.
The North Carolina State Bar, which offers certification in eight areas, began to notice its criminal law program was suffering because fewer lawyers were willing to take the risk of going to trial because of sentencing guidelines. As a result, fewer criminal lawyers could meet the certification criteria, which included minimum numbers of trials. “Our board became very concerned that having this specific list of requirements would exclude a certain amount of people who had trial experience but did not meet our laundry list,” says Alice Neece Mine, director of the bar’s board of legal specialization in Raleigh.
The bar moved to a more comprehensive approach where applicants are evaluated based on the entirety of their experience and backed by peer review.
The North Carolina board doesn’t offer a certification program for civil trial lawyers. But if it did, lawyers might find it problematic to qualify, Mine says, because “that is where the impact of ADR would come into play.”