ABA Connection

The Endangered Trial Lawyer


Beyond the mirth and magic in the stories of trial lawyers still nimble in the courtroom in the autumns of their careers lies a worthwhile narrative: How they got there.

Like the burlesque line about the way to Carnegie Hall: It takes practice, practice, practice. In the courtroom.

That route seems etched in water now as the number of cases actually going to trial has shrunk to minuscule. In his oft-noted research on the “vanishing trial,” law professor Marc Galanter of the University of Wisconsin at Madison detailed a huge drop in federal civil cases ending during or after trial: 11.5 percent in 1962, down to 1.4 percent in 2002. That trend has been most precipitous since 1985, when the number of trials peaked at 12,529 and accounted for 4.7 percent of the cases terminated that year. In 2006, 3,555 civil cases, or 1.3 percent, went to trial. And the downtrend is likely to continue apace.

A LOOK AT THE NEW FACE OF LITIGATORS

In the age of the vanishing trial, how can the young lawyers of today develop the kind of art and skill their elders wield so well in the courtroom?

Some of the best of the old breed are pessimistic about the prospects. Others say cowboys with six-guns and lassos are no longer needed in an age of mechanized cattle ranching.

Some say the jury trial has been usurped by heavy-handed jurists too determined to reach into questions of fact.

“There won’t be any problem getting the next generation of litigators,” says Houston-based antitrust litigator David Beck, co-founder of Beck Redden & Secrest. “The problem is getting the next generation of trial lawyers.”

When Beck was president of the American College of Trial Lawyers in 2006-07, he appointed a task force to look at what can be done to reverse the consequences of the vanishing trial.

Many have heard the stories about litigators making partner without having tried a case—journeymen carpenters who never drove a nail. Some retire without ever knowing the visceral taste of a jury’s verdict.

Criminal lawyers find themselves in much the same predicament. Critics, including judges, say that plea bargains have become not just de rigueur but bargain basement. Prosecutors pile charges on defendants who want a trial, such that they face huge multiples of the sentences meted out to those who plead.

A lot of law firms have adapted by loaning associates to local prosecutors and to pro bono projects. Law schools have developed a spate of advocacy courses and competitive trial teams. Students travel the country trying actual fact patterns before real judges, but their numbers are limited. At William & Mary Law School, adjunct professor Jeffrey Breit—an accomplished trial lawyer—says 108 first-year students recently applied for 12 slots in his program.

While the American College of Trial Lawyers and others seek to restore the tried and true, some believe those efforts are being overwhelmed by inevitability.

Julie Macfarlane, a law professor at the University of Windsor in Ontario, Canada, says the new lawyer is still a zealous advocate—just not a warrior. Negotiation is the game.

“These new lawyer roles do not have completely different skills. They’re still reading the room and the faces,” says Macfarlane, who authored The New Lawyer: How Settle­ment Is Transforming the Practice of Law.

But there are differences, she says. For example, it doesn’t pay to try to convince everyone of the brilliance of your theory, as it might in the courtroom. You ply your skills to get the best possible resolution for your client. And rather than hold back a piece of information that can be used to trap a witness on cross-examination, the new lawyer puts it on the negotiation table.

Just the same, Macfarlane says, “this isn’t about everybody singing Kumbaya. It’s still about money. It does mean that the role models for young lawyers and law students are changing.”


ABA Connection offers three easy ways to get low cost/no cost CLE credit

Live Call-in Teleconferences

This month’s “Old Lions Still Roar: Seven Veteran Trial Lawyers Share Their Strategies” is from 1-2 p.m. ET on Wednesday, March 18.

To register, call 1-800-285-2221 between 8:30 a.m. and 6:30 p.m. (ET) weekdays starting Feb. 23, or go to abanet.org/cle/connection.html. Multiple participants may listen via speakerphone, but each individual who wants CLE credit must register separately.

Online Access—At No Cost

Online Streaming Audio, available starting Monday, March 23. To register, go to abanet.org/cle/connection.html. Past programs here.

CLE on Podcast

Podcast downloads are available starting Monday, March 23.

Coming in April: “This Land Is Whose Land?”


Read about seven Lions of the Trial Bar.

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