General Practice, Solo & Small Firm DivisionMagazine

Trial Practice

Litigation And Litigators: Where Are We Headed?

By John J. Curtin, Jr.

About a quarter century ago, this magazine and the ABA Section of Litigation were born. As we celebrate 25 years of existence as an ABA section, it makes sense to survey the profession’s place in history, to describe changes over the past 25 years in what litigators do (particularly the trend towards specialization in large firms), and to hazard some predictions about what the future holds.

The growth in the number of litigation associates has made it difficult for younger lawyers to obtain substantial broad-based trial experience. Recognizing the importance of broad-based courtroom experience, firms are offering trial substitutes to their younger litigators, ranging from in-house training programs, including mock trials, to lend-lease arrangements with government agencies that try cases.

Some firms and litigators have responded to the lack of opportunity for broad-based trial experience by specializing. Large firm associates may begin their careers somewhat generally, working for partners on several teams. Inevitably, however, litigation associates begin to develop an image as having expertise in a particular subject matter. Soon the niche becomes an exclusive practice area for the associate.

A dramatic shift in supply and demand has also helped to promote specialization. Twenty-five years ago, good trial lawyers were in short supply. Then, beginning about that time, litigation between corporations became "generally respectable." The supply of litigators increased dramatically to meet the increased demand. Today, the available supply of litigators has exploded. Specialization offers a road to distinction.

As the number of litigators has expanded, economic pressures have forced clients to reassess their demand for litigation services. In deciding whether to litigate, today’s clients analyze whether the risk of an adverse result and the expenses–including attorneys’ fees–will bring business results that justify the investment. The result has been an increasing supply of litigators and decreasing client demand. Today, clients hire a specific lawyer or team for a specific problem. The "right" lawyer or team will be the one offering substantive specialization in addition to trial skills. As a result of these changes in the marketplace, litigators have become more competitive.

A third factor that has fed the drive to specialize is the emergence of more technical areas of law requiring specialization. The ever-increasing complexities of substantive law in certain areas means that even the brightest lawyers can be expert in only one or two.

If many litigators of the future will not gain broad-based trial experience but instead will be specialists, what will they be doing in those specialties? In large firms they will be doing discovery, engaging in motion practice, preparing witnesses in megacases, drafting briefs, and filing dispositive motions. Litigators will use pretrial skirmishes as much to position a case for settlement as to prepare it for trial. It is likely that only those who specialize in areas in which settlement may be viewed as an admission of incompetence, such as medical malpractice, will take a significant number of cases to trial.

Litigators will also expand their practice to other forums. There is a growing use of alternative methods of resolving disputes, and more groups, such as the Center for Public Resources, are urging alternative dispute resolution. Mediation is an ever-increasing option, sometimes as an adjunct to a court case, but often as an independent process. Arbitration has long been an alternative method of resolving disputes. Today, more and more contracts have mandatory arbitration clauses. The types of disputes subject to arbitration are also expanding.

To a greater or lesser extent, these alternative forms of dispute resolution require, or will at least profit from, litigators with trial experience. In turn, the litigators who practice in these alternative forums will gain trial experience or its future equivalent.

In 1991, I asked the question, "What kind of a lawyer do you want to be?" That is still the question. Perhaps the focal point of incivility today involves discovery. To abuse discovery is to act unprofessionally. Concern over discovery abuse has been a principal priority of the Litigation Section for years. Discovery should be proportional to the needs of the case, and the Rules of Federal Procedure should set standards for attorneys making or responding to discovery requests. These views were essentially adopted in the limitation and signature provisions of Rule 26(b) of the Federal Rules of Civil Procedure. The principles of proportionality and responsibility are in the rules to prevent the abuser from seeking to discover everything–even facts of marginal relevance. However, changes in the rules of discovery will not be enough. Effective and appropriate discovery requires a change in legal culture, rather than rule revision.

How will litigators use discovery in the next 25 years? The cooperation of law schools, the bar, and the judiciary will create a legal culture that will consider purposeful discovery, rather than omnibus discovery, the true goal of the litigator. The litigators of tomorrow will analyze the facts of a case, develop a working theory and a theme, and use discovery to establish the facts that will prove or disprove their theory.

Because 90 to 95 percent of civil cases settle, litigators will develop techniques to enhance the likelihood of a favorable settlement. They will be precluded from attempting to wear down the other side through excessive discovery by rules limiting the number of interrogatories and depositions, and by judges who set specific time limitations for completing various types of discovery.

Curbing discovery abuse alone does not guaranty professionalism, however. Unprofessional misconduct occurs at other times and in other forums. Over the years, various organizations have attempted to promote professional behavior at trial, for example, by adopting codes of trial conduct. The American College of Trial Lawyers has a code of minimal standards of professionalism, setting forth the duties owed by trial lawyers to their clients, opposing counsel, the courts, and the administration of justice.

The ABA has published a booklet entitled "Promoting Professionalism," identifying six components of professionalism: (i) ethics and integrity and professional standards; (ii) competent service to clients while maintaining independent judgment; (iii) continuing education; (iv) civility; (v) obligations to the rule of law and the justice system; and (vi) pro bono service.

One component of professionalism is civility. Many jurisdictions have adopted codes of civility. Civility codes suffer from the same difficulty as discovery rules, however. The legal culture must be changed so that the principles embodied in the codes of professionalism and civility are endorsed, rather than ignored or given lip service.

The challenge for the profession in the next 25 years is to recognize the importance of trial skills, professionalism, and civility. Whatever changes develop in the litigation profession over the next few decades, the need for experienced, ethical, effective trial lawyers will not abate. As a profession, we must commit to meet the challenge of training trial lawyers. We must train them to be skillful, and to adhere to standards of professionalism and civility without abandoning zealous advocacy.

John J. Curtin, Jr., is a litigation partner at Bingham, Dana, & Gould in Boston, and a former president of the American Bar Association.

- This article is an abridged and edited version of one that originally appeared page on 45 in Litigation, Fall 1998 (25:1).

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