July 01, 2014

Training the New Litigator: Some Assembly Required

Responsible firms try to provide new litigators with appropriate oversight and monitored opportunities for hands-on learning.

Len Niehoff

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The financial crisis of 2008 brought the legal profession to a crossroads. Indeed, it brought the profession to so many crossroads that we awoke to find ourselves in a surreal cityscape that seemed to consist of nothing but dangerous intersections. Law firms faced tough decisions about which way to go: Should we get smaller, or stay the course, or take advantage of the buyer’s market for new and lateral hires? Should we jettison struggling clients or stand beside them? Should we cut budgets for business development, or do we need them now more than ever? Should we pursue some practice areas and clients that the downturn has made more attractive, or will we regret doing so once the economy rebounds?

Of course, law firms had been thinking about these questions for many years. But the financial crisis brought us the additional focus that urgency provides. “When a man knows he is to be hanged in a fortnight,” Samuel Johnson memorably observed, “it concentrates his mind wonderfully.”

The financial crisis urgently and wonderfully concentrated our minds on the training of new lawyers. But getting new litigators ready for prime time poses serious challenges. One of those challenges follows from the profession’s limited tolerance for error. We recognize the pedagogical value of allowing people to make mistakes and learn from them—as Rita Mae Brown put it, “Good judgment comes from experience, and experience comes from bad judgment.” But law firms cannot simply turn new trial lawyers loose to blunder their way toward wisdom. The stakes are too high, some errors are irreversible, and no sensible client would consent to such an approach in his or her own case. Indeed, this risk-averse perspective is embodied in our ethics rules, like ABA Model Rule of Professional Conduct 5.1, which requires that senior lawyers in supervisory positions make reasonable efforts to ensure that more junior lawyers comply with their obligations, including the obligation to provide competent representation. Sending an untrained litigation associate off like an unguided missile is not a template for training; it is the launch code for malpractice.

 

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