Like Judge Anderson, I have been on the bench for over 25 years, and I agree that we, both lawyers and judges, are losing our trial skills for the simple reason that we do not get enough practice in front of everyday citizens who make up our juries. But Judge Anderson makes another point with which I also agree, and I want to use it as my initial point of departure. He says, “Many judges—myself included—have noticed a rise in the number and complexity of discovery disputes that seem to coincide with the decline in civil jury trials. My own theory about this is lawyers—who, as we all know, have combative instincts in their DNA—now view discovery as the battleground where the adversary process is played out.” Of course, the resolution of discovery disputes has become one of the main responsibilities of magistrate judges, and my own experiences confirm this discovery-battleground idea.
From those experiences, I can comfortably state that discovery disputes have another purpose: a training ground for young lawyers. Arguing discovery motions indeed gives young lawyers experience in a courtroom before a judge, but in my view it most assuredly is not the kind of experience that prepares them to try a case before a jury. Indeed, it may be the kind of experience that is contrary to development of jury trial skills. For example, I cannot count how many times during argument I have said, “Counsel, please move on. That is a jury argument.” When I’m confronted with deciding a motion to compel, I want to know the straightforward facts about how a party failed to live up to its responsibilities under the Federal Rules of Civil Procedure so I can determine how to order compliance and whether sanctions are appropriate. Judge Edmondson succinctly captured this notion when he said, “In presenting arguments to busy trial courts, subtlety is no virtue.” United States v. Reyes-Vasquez. And in arguing a discovery dispute to me, neither is a story laden with emotional appeal.
But presenting facts in a compelling narrative with an appropriate emotional overlay is precisely what lawyers ought to be doing in bringing a case to a jury. However, I fear that the courtroom experiences we are giving our young lawyers is leading them to the false notion that presenting a case is like laying out data elements on a spreadsheet. Plug the numbers into a formula, and you get the right answer. Summary-judgment practice in civil-rights cases tends to reinforce that notion. When an employee makes a claim of intentional discrimination involving circumstantial evidence, the district court typically analyzes the case, using the burden-shifting framework set out in McDonnell Douglas Corp. v. Green. Under McDonnell Douglas, the plaintiff bears the initial burden of presenting sufficient evidence to allow a reasonable jury to determine that he or she has satisfied the elements of his or her prima facie case. If a plaintiff makes out a prima facie case of discrimination, the employer must articulate a nondiscriminatory basis for its actions, then the burden shifts back to the plaintiff to show that the employer's proffered reason was a pretext for discriminatory action. Texas Dept. of Cmty. Affairs v. Burdine. This formulaic approach obscures the real question of discriminatory intent. Interestingly, if a plaintiff survives summary judgment and gets to trial, the jury instructions ask the jury to determine based on all of the facts whether the actions of the defendant were motivated by discrimination. There certainly is no formula for that. Rather, how a jury answers that question is the expression of a judgment, and it is the job of the lawyer to persuade the jury to reach judgment in the client’s best interest. Writing in the New York Times, David Brooks comments on the limits of data in decision making. “Human decisions are not discrete events. They are embedded in sequences and contexts. The human brain has evolved to account for this reality. People are really good at telling stories that weave together multiple causes and multiple contexts.” David Brooks, “What Data Can’t Do.” I think Brooks has it right. Persuasion is an amalgam of facts in context creating a story that is believable both emotionally and factually. Certainly, I am speaking in generalities, but, frankly, too many young lawyers have difficulty telling a compelling story, a story that is the framework for a jury to understand a case. Recently in the midst of a mediation session I was conducting, I commented that one of the problems in the plaintiff’s case was that it had no “heat.” It astounded me that the lawyer had no idea what I was talking about. It frankly had not occurred to him that damages were as much a matter of emotional appeal as they were a cold calculation of dollars and cents.
Early on I said that we are losing our trial skills. Many of those skills involve courtroom procedures, evidentiary issues, or conducting direct and cross-examinations. These skills can be developed in mock trials, and many larger firms appropriately use mock trials as a way to develop and hone these skills. Put the term “trial skills” into a search engine, and you will find plenty of CLE opportunities.
What is more difficult to develop in these mock proceedings is the communicative skills necessary for trying a case to a jury. After the end of my first jury trial as a young lawyer, (incredibly I won) one of the jurors approached me with this question: “What does the word ‘subsequently’ mean?” As we all know, three years of reading appellate opinions in law school incorporates that word into our vocabulary. After the encounter with the juror, I never used that word again in speaking to a jury. That brief encounter was fortunate for me because it underscored how important normative communicative skills are for lawyers. The demise of trials is rapidly depleting those skills.
Aside from our difficulty communicating with jurors, even more alarming to me is our apparent difficulty communicating with each other as lawyers. In his article “Is Facebook Making Us Lonely?”, Stephen Marche talks about the effects of our world of electronic interconnectedness:
Yet within this world of instant and absolute communication, unbounded by limits of time or space, we suffer from unprecedented alienation. We have never been more detached from one another, or lonelier. In a world consumed by ever more novel modes of socializing, we have less and less actual society. We live in an accelerating contradiction: the more connected we become, the lonelier we are.
Rule 26 and Rule 37 of the Federal Rules of Civil Procedure require counsel to confer with opposing counsel in good faith prior to filing any discovery motion. A short while ago, a lawyer filed a motion to compel in my court in which he certified that he had conferred with opposing counsel by email. The problem with this assertion is that it confuses an exchange of information with the type of communication that is fundamental to our profession. We need to talk to each other; we need to feel each other out. We need to hear the voice of and see the face of opposing counsel to help assess the strength of his or her position. But increasingly we are shunning face-to-face communication in favor of letters, emails, and even text messages. Admittedly, these methods are more expedient, but they are devoid of the multiple communicative contexts that help us make well-informed decisions. Albert Einstein echoed this concern when he reputedly said it “has become appallingly obvious that our technology has exceeded our humanity." At the end of those few civil cases that we do try, we tell the jurors that now that they have seen and heard all of the witnesses, they must decide who was telling the truth. To help them we suggest they ask themselves some questions, one of which is “Did the person impress you as someone who was telling the truth?” We need to see and hear each other to make those same types of judgments.
I recognize that the practice of law has markedly changed in the 25 years since I last practiced, and that many of you who read this will view a judge who is removed from the fray in the same way that Ernest Hemingway viewed critics when he said, “Critics are men who watch the battle from a high place, then come down and shoot the survivors.” But my so-called high place does give me time to reflect and come to some conclusions about vanishing trials and the consequences of the trend. Unless summary-judgment law and practice is markedly altered, there will be few civil trials. Unless arbitration, mediation, and other forms of alternative dispute resolution decline, there will be few civil trials. Unless courts, lawyers, and litigants come to grips with the costs of discovery in terms of both expense and time, there will be few civil trials. While we can bemoan this reality, we also must confront it.
Litigation is dispute resolution, and all of the so-called causes of vanishing trials also resolve disputes. In dealing with these different methods, all of us must develop the skill sets that advance our ability to achieve success. But regardless of those technical skills, we must not lose sight of and continue to develop our most important skill: effective and persuasive person-to-person communication. That skill is fundamental to any form of dispute resolution, even an argument about a discovery dispute. And while it may be correct that emotionally laden arguments to judges do not command much attention, do not confuse emotion with passion. You should evidence passion in your presentations and arguments. Your passion will infect your audience, even if the audience is a judge.
Keywords: litigation, pretrial practice, discovery, vanishing trials, trial skills, effective communication
Hon. Charles S. Coody is a magistrate judge in the Middle District of Alabama.