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By Robert W. Denney
For more than 20 years, the number of courtroom trials has been steadily declining. Scared off by huge jury verdicts, more and more civil litigants are arbitrating or settling their disputes. The high cost of litigation has scared off other plaintiffs. And fewer marginal cases are being filed now that some state legislatures have imposed caps on jury verdicts.
Regardless of the reasons for the decline, however, the result is that many firms continue to be faced with a serious problem: How can their younger lawyers obtain trial experience so they can replace the diminishing pool of seasoned trial lawyers?
The situation becomes even more serious for the litigation departments of some large, "name-brand" firms. Major corporations will use these firms for the resource-intensive task of preparing cases for trial—but when it is apparent that a case will go to trial, they often turn to experienced trial lawyers at small firms or litigation boutiques. Consequently, some associates in the large firms leave for lower-paying government agencies because they want more trial experience.
Although class actions are larger and more prevalent than in the past, there seems to be no end in sight for the continued decline in the number of trials and the increasing challenge many firms are facing as a result.
Some firms, however, have come up with a creative solution: an increased emphasis on pro bono work, not just for the sake of "doing good," but also to give younger lawyers trial experience they could not obtain otherwise.
"Firms have really begun to realize the advantage of donating legal services as a professional development tool," according to Esther Lardent, president of the Pro Bono Institute at Georgetown University Law Center. To illustrate how the concept can work, here's a rundown on what some firms have been doing.
Late last year Mayer, Brown, Rowe & Maw made an offer to federal judges in Chicago: The firm would represent any prisoner who didn't have legal counsel and whose case is set for trial.
Earlier in the year, associates at Cravath, Swaine & Moore handled a personal injury case they received from the New York City law department.
In the Pittsburgh office of Jones Day, associates try domestic-abuse cases referred by the Allegheny County District Attorney's office.
Other firms have asked certain associates to take paid leaves-of-absence to work for organizations that routinely take cases to court.
In its Washington, D.C., office, Fulbright & Jaworski has had an associate prosecuting police officers for the city's attorney general's office. And in Fulbright's New York office, another associate is trying both slip-and-fall cases and traffic altercations for the city's law department.
In Orange County, California, an associate at Gibson, Dunn & Crutcher spent part of last year prosecuting misdemeanors.
None of these are "bet-the-company" cases, of course, but they give these young lawyers a wealth of courtroom experience. And that's the point.
Along with the greater emphasis on pro bono work, many firms continue to run mock-trial training programs. Susman Godfrey teaches associates by using videotapes of high-profile trials such as Merck's Vioxx trial in New Jersey.
At the same time, however, many firms seem to be accepting the decline in trial work by hiring litigators to handle the continued increase in
non-trial work, such as international arbitrations and internal corporate investigations.
What all this seems to add up to is that one continuing trend has resulted in other trends in an attempt to offset it. Perhaps the old law of physics applies here: "To every action there is an equal and opposite reaction."