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The Vanishing American Trial Revisited
Categories: This & That
The State Bar of Michigan recently sponsored a forum, "The Future of Legal Services." In the December issue of the State Bar Journal, State Bar President Thomas Rombach followed up with a list of issues discussed: "...unbundled legal services, attorney licensing and regulatory reforms, legal education reforms, alternative billing methods, electronic filing, limited license legal technicians, pro se litigation...." State Bar Journal, December 2014, Volume 93, Number 12, pages 14-15. The "Vanishing American Trial" didn't make the list. As a mediator and former trial lawyer, I believe that’s a mistake.
In law practice today trial lawyers have little or no trial experience. The statistics are reported in my Blog Post of July 22, 2014, "The Vanishing American Trial." In the Ninth Circuit, for example, with the highest percentage of trials in the system, lawyers try no more than 1.9% of the cases filed. In Michigan, the percentage is only 1.2%. A successful litigator with 20 years experience told me recently he has tried four cases in his entire career. "I've also arbitrated four cases," he added. "Do they count?"
When trial lawyers no longer try cases, there are consequences and implications for the bar and the public. I have listed several below. The atrophy of trial experience deserves to be part of any "Future of Legal Services" discussion.
1. Declining experience evaluating cases for settlement: During my time at ICLE, the Institute of Continuing Legal Education, I met insurance executives concerned about how to value cases for settlement when the current crop of experienced trial lawyers retires. Newer, younger lawyers are fine litigators they think, but without trial experience, how can they accurately evaluate risk and make good judgments about resolution? At least one executive explored whether trial advocacy workshops might serve as an adequate substitute. The answer: “probably not".
2. Lawyer exclusion from the valuation process: In the early days of my practice both as trial lawyer and as mediator, it was rare to run across defense counsel with only a limited role in the valuation process. Quite the contrary. Defense attorneys were crucial partners in evaluating their cases for settlement. Today, the opposite seems true, particularly with insured claims or sophisticated corporate defendants. Indeed, lawyers today often tell me their clients aren't especially interested in hearing their recommendations. In increasing numbers of cases, defense counsel arrive at the mediation table unaware of their own side's bottom line.
3. Unreasonable positions in settlement negotiations: Insurance executives are right to be concerned about a growing lack of trial experience among the attorneys they retain. Too often unreasonable settlement proposals are placed on the table because the cases were not evaluated appropriately. Unreasonable settlement proposals have a toxic impact on resolution.
4. Unsound advice to clients: When I was in practice and representing clients, I tracked the number of cases I investigated versus the number of cases I accepted for litigation. The ratio hovered around 75:1. That's a lot of chaff to find the wheat. As a contingency fee lawyer, I limited my practice to cases I considered meritorious. Nonetheless, it was always clear to me which cases carried substantial risk; risk I was able to recognize after years of presenting claims to juries. Based on experience, I was able to explain to potential clients why proceeding with litigation was or was not a good investment of their time and energy. With little or no experience trying cases, plaintiff attorneys are hard pressed to distinguish solid cases from weak ones. A similar problem is occurring on the other side. For the defense, lack of trial experience has a powerful impact on when or whether to encourage clients to seek early resolution.
5. Weak performance in trial: Cases are won and lost mostly on their facts. Lawyering nonetheless can make a big difference. When one of the lawyers is an experienced trial lawyer and the other is not, the result can be explosive: close cases are more often won by the client with the experienced trial lawyer; and the damage award is more likely to be out of proportion to the evidence.
This is a new era, an era of "The Vanishing American Trial." The loss of trial experience is as much a challenge to the profession in the 21st Century as technology, regulation, electronic filing and the like. There are serious consequences for a public seeking access to justice when few lawyers have broad trial experience. The challenge warrants careful consideration and vision about where the practice is going. The “Vanishing American Trial” should be part of any discussion addressing the future of our profession.