Vanishing Trials

Take note, prospective trial lawyers: the route to the courtroom travels an increasingly-narrow path. The number of civil trials has declined steadily over the past 40 years to the point that only 1.8% of all civil cases filed in federal court result in trials. The number of civil trials in state courts shows a similar decline. I would not have guessed the number to be so small. Today’s Boston Globe reports “[b]ecause of the high cost of going to trial, fear of unpredictable jury verdicts, and other factors, many cases instead are being resolved through settlements, mediation, and arbitration, which litigants often prefer to the emotional ordeal of going to court.” Rational reasons all, but (as The Globe reports) fewer trials means fewer experienced trial lawyers, a problem compounded by staffing practices in large corporate firms. If you hire Bob Popeo to represent you in a civil matter then, if your case is one of the 1.8% that goes to trial, you want Bob Popeo as lead counsel in the courtroom, not not one of Popeo’s talented younger partners and certainly not a litigation-department associate, no matter his or her academic pedigree. When the Popeos of the litigation bar retire, however, the ranks of lawyers with trial experience will grow successively thinner with each generation. As high as the stakes and arduous as the preparation for a summary judgment motion might be, it is not the same experience as a multi-day trial.

The article points out some of the steps firms are taking to enable younger lawyers to gain trial experience, such as handling pro bono cases through the Boston Bar Association’s Volunteer Lawyer’s Project. Shortly after its inception in 1977 I worked as a paralegal at the Volunteer Lawyer’s Project. VLP is worthy for its pro bono client services and for the hands-on opportunities it provides to attorneys. Taking a case through the Volunteer Lawyer’s Project may increase a lawyer’s chance of trying a case but trials are no more numerous in those cases than they are in civil limitation in general.

Civil trials are terrible vehicles to resolve disputes, contentious, ridiculously expensive, and emotionally draining, and I don’t bemoan their paucity. The scarcity of trials underscores a disconnection I experience in just about every conversation with wannabe law students, who think of litigation when they think of the law: most lawyers are not litigators. For every lawyer in the litigation department of a large corporate firm there are often 5-10 lawyers in other practice areas. They are real estate lawyers, corporate lawyers, trusts and estates lawyers, tax lawyers, municipal finance lawyers, environmental lawyers, they almost never set foot inside a courtroom (testifying as a witness for a deal gone wrong doesn’t count), and they practice outside the gaze of Court TV, law-based TV shows and movies. We will never see a television drama called Bond Counsel or Fiduciary (well, maybe on cable), which means most pre-law students will experience the law through the distorted and diminishing prism of trials.

Sacha Pfeiffer, Few chances for lawyers to develop trial skills, The Boston Globe 29-Nov-06, p.1

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