It may not be surprising to hear that civil trials are diminishing; however, the rapid and sharp decline in which they are is sobering. Over the past 20 years, the number of annual federal trials has dropped by about 62 percent, even though during that same time period, federal courts’ caseloads have substantially increased. Nora Freeman Engstrom, “The Diminished Trial,” 86 Fordham L. Rev. 2131, 2131–33 (2018). Those statistics raise an important question: How will the next generation of trial lawyers gain the training and experience necessary to properly represent clients?
The Diminishing Trial Phenomenon
The diminishing trial statistics are not limited to federal court matters. State court cases are also experiencing this disappearing act. Between 2000 and 2009, state jury trials decreased by over 47 percent, and a 2016 report by the National Center for State Courts (NCSC) found that the percentage of state jury trials hovered between .05 and .50 percent of all filed civil cases in the 24 jurisdictions studied. Engstrom, supra, at 2132. For example, in 2016, West Virginia had 21 federal civil trials, Wyoming had 8, Alaska had 3, and Vermont had only 2. Id. at 2131.
Engstrom suggests that in addition to disappearing, trials are “shrinking.” Engstrom, supra, at 2133. She attributes this “shrinking” to what Yale Law School Professor Judith Resnik calls “managerial judging.” Judith Resnik, “Managerial Judges,” Faculty Scholarship Series Paper 951 (1982). “Managerial judging” is judicial officers’ willingness to take an active role throughout the litigation in an effort to more efficiently control and manage their docket. This includes a more active role in encouraging settlements.
In addition, the use of dispositive motions has significantly increased. From 1975 to 2000, the percentage of cases in which at least one summary judgment motion was granted doubled from 6 to 12 percent. Engstrom, supra, at 2138. Lawyers are filing more pretrial motions for summary judgment or partial summary judgment, and even motions to dismiss, providing judges with the opportunity to weed out weak cases or claims, and exercise more control over which disputes remain on their dockets and proceed to trial.
The economization of litigation has also produced an increase in bifurcated trials. Engstrom, supra, at 2142. Complex issues, such as mass torts or intellectual property issues, are now often heard in two separate parts: a liability stage and a damages stage. Federal Rule of Civil Procedure 42(b) allows courts to use this bifurcation technique to promote “expedition and economy” in litigation. Therefore, if a plaintiff is unsuccessful at the liability stage, the matter will not advance to the damages stage.
This increase in pretrial motions and resolutions, however, has created a new set of “trials,” or at least modified the traditional sense of a trial. Hearings that may not have previously been considered trials, like temporary restraining order hearings or hearings on Daubert challenges, are now filling the vacuum left by the disappearing trial. Engstrom, supra, at 2139. This increased pretrial adjudication has resulted in a significant increase in single-day trials. Over the past three decades, single-day federal civil trials have increased from 46 percent to 54 percent in 2016. Engstrom, supra, at 2134. As a result, trials are “becoming shorter, more regimented, subject to less party control, and more affected by particular judicial whims.” Id.
The Impact on Developing Attorneys
At the same time civil trials are disappearing and shrinking, the number of lawyers is steadily increasing. There was a 15.2 percent increase in the U.S. lawyer population over the past decade. Press Release, ABA, New ABA Data Reveals Rise in Number of U.S. Lawyers, 15 Percent Increase Since 2008 (July 20, 2018). The obvious impact of the trial shortage is that newer attorneys lack the same exposure as prior generations to become seasoned courtroom litigators, and firms have fewer trial opportunities to offer associates. If firms do not actively create opportunities for those interested in becoming trial attorneys, those attorneys will not gain the skills and experience necessary to competently represent clients at trial. The not-so-obvious impact is that fewer attorneys may seek to become trial attorneys. Steve Susman, “Civil Jury Trials Are Fast Becoming Extinct,” Harv. Law Record, Apr. 25, 2016. If there is no clear route to becoming a trial attorney or if firms do not support that interest with trial-focused experience and mentoring, attorneys who dreamed of becoming the next Perry Mason may very well choose a different path.
The lack of trials and a decrease in the number of attorneys with trial experience means clients who wish to proceed to trial will have fewer choices when it comes to selecting counsel comfortable with and skilled at trial, including managing and litigating a case through the court system. This puts at risk an important American right—the right to trial by jury guaranteed by the Seventh Amendment to the U.S. Constitution, which has been adopted by virtually every state constitution. On the other hand, firms that actively develop young associates into trial attorneys will have a competitive edge over those that fail to do so.
How to Overcome the Experience Shortage
Take associates to trial. In cases that proceed to trial, put at least one associate on the trial team, even if the case is small and may not ordinarily require a second attorney. The level of associate participation should increase with the associate’s experience level. Less experienced associates can assist with jury instructions, witness preparation, and exhibit organization. Assign more experienced associates to lower-impact trial witnesses and build them up to handle the key witnesses. If the client is reluctant to approve a second trial attorney, get creative. Bring the associate in place of a paralegal, and bill the associate at the paralegal rate. The client then gets the benefit of an extra attorney without the extra cost. While this may mean the firm collects less from that associate during the trial, it gives the firm the intangible benefit of developing the associate into a more confident attorney in the courtroom.
For pro se and low-risk cases, allow the associate to handle all aspects of the trial, accompanied by an experienced attorney if necessary to assist with any issues that may arise.
Even if an associate is not able to assist with a trial, encourage him or her to observe portions of the proceedings. Allow the aspiring trial associates who are not on the trial team to take time away from the office to observe the examination and cross-examination of key witnesses or closing arguments. During trial, the trial team often meets at the end of each day to discuss the day’s events—what was unexpected, how it affected the case—and to develop strategy for the remainder of the trial. Include associates who have worked on the case in those meetings.
Allow associates to handle hearings, oral arguments, and depositions. As hearings become smaller, shorter, and more focused on single issues, associates may have more opportunities to appear in court. Temporary restraining order return hearings, limited issue evidentiary hearings, and similar events present associates with opportunities to test their mettle in the courtroom. While these hearings may not be traditional trials, they do require an understanding of basic litigation, evidence, oral advocacy, and courtroom savvy. The same is true for arbitration hearings.
Associates are also prime candidates to argue pretrial motions. When associates play a role in preparing the brief being argued, allow them the opportunity to handle the oral argument. Following this protocol may also win the firm good favor with the judge. Some judges have issued orders encouraging firms to allow young lawyers to handle oral arguments, on occasion even stating that they will not schedule a hearing on certain types of routine issues unless a junior lawyer is presenting the arguments. Sara Randazzo, “More Junior Lawyers Would Please Courts,” Wall St. J., Sept. 25, 2016.
Depositions are another important training ground because they require the associate to understand the big picture of the case, develop a line of questioning, make objections to opposing counsel’s questioning, and interact with other litigators in the “heat of the moment.” Getting associates involved in these pretrial aspects of the case helps them understand how the different pieces of litigation fit together to build the case for trial.
Finally, associates should be provided with the opportunity to argue at some stage of a bifurcated hearing. For example, if a partner is successful at the liability stage, an associate may be able to handle all or part of the damages stage.
Support associates performing pro bono trial work. There are numerous pro bono programs that can provide associates with opportunities to gain litigation experience at both the state and federal levels. Law firms should support and encourage their aspiring trial attorneys to get involved in these programs. For example, the U.S. Department of State administers the Hague Convention Attorney Network, a program that provides “pro bono and reduced-fee legal representation to qualified low-income applicants in incoming Hague Convention return and access cases.” The volunteer attorneys in this program have the opportunity to use the Hague Convention to argue that children abducted by their parents should be returned to their home country with their primary parent. These cases can be brought in either state or federal court.
There are also federal programs that provide pro bono services to prisoners. Many times, these programs provide volunteers with the opportunity to represent prisoners in civil rights cases (28 U.S.C. § 1983 actions) against state actors. The Eastern District of Pennsylvania has a well-developed Prisoner Civil Rights Panel program that is always looking for volunteers.
In addition, many states and local jurisdictions offer opportunities through volunteer lawyer programs. These programs span the legal area spectrum from appellate law to family law to criminal law to landlord-tenant disputes. Some jurisdictions also offer volunteer prosecutor programs, allowing associates to prosecute low-level offenses such as parking tickets. While these cases are minor, they provide associates with ample opportunity to gain invaluable litigation experience.
Individual firms can also set up their own pro bono programs. For example, the firm can volunteer to take all domestic violence referrals from the local bar association’s pro bono program, which allows the firm’s associates to represent victims of domestic violence in civil protection hearings and appeals. Firms can also loan associates to the local public defender’s office, allowing the associates to work part-time defending indigent clients in court. These types of programs give associates courtroom experience, as well as exposures to judges and other attorneys.
Sponsor trial-focused trainings and CLEs. Firms should encourage associates to complete trial-focused trainings, including those aimed at developing deposition skills, oral advocacy skills, and understanding the presentation of evidence. For example, the State Bar of Arizona offers a College of Trial Advocacy, a week-long intensive program to teach trial skills, culminating in a half-day mock trial with live jurors and judges in an actual courtroom. The National Institute for Trial Advocacy and International Association of Defense Counsel also offer intensive trial advocacy programs. Firms also have the option of developing in-house programs, using their own trial attorneys as faculty.
In an era of diminishing and shrinking trials, firms must commit to finding ways to develop future trial attorneys. Associates must also advocate for themselves. They should take the initiative to complete CLEs focused on trial and seek out courtroom experience in the cases to which they are assigned.
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