Recently, The Legal published an article that asked, “Is the Golden Age of Trial Attorneys Over?” The answer from this board is no. While we stipulate that the increased use of ADR methods, rising costs of trials and courtroom technology, and added pressure to settle have led to a reduced number of civil trials across the board, these factors do not fully explain why the reduction in trial opportunities disproportionately impacts younger attorneys. Despite all the commentary in the article about young litigators, no young litigators were asked to comment. Instead, senior attorneys framed declining trial opportunities from their own perspective, and conveniently omitted that, for those cases that do go to trial, they choose who staffs each trial and who performs each examination. Often, they choose to exclude younger attorneys. Thus, this trend is not merely the result of circumstance; it is also the result of choice.
Diagnosing Decreased Opportunities
The article suggested that in “the old days” young lawyers would “cut their teeth” on smaller cases and those opportunities no longer exist. However, in private conversations, senior trial lawyers concede that in decades past, it was much easier to reach a settlement in the early stages of litigation or even with a demand letter and a few phone calls. Presumably, these claims are now being litigated. The actual reduction in the number of cases going to trial has not been accurately quantified or studied; thus, it is not clear how many opportunities have truly been gained or lost. What can be quantified is the number of opportunities that senior counsel allow their colleagues to have.
Many of today’s cases that end up in trial are larger and more complex than ever. Some attorneys believe that midlevel attorneys are not prepared to make a valuable contribution in these cases, so it is harder to find roles for associates to fill. We disagree.
The complexity or length of a trial should not make it more difficult to find a role for a less-senior second or third chair; it should make it easier. Trying a multiweek case with dozens of fact and expert witnesses allows a willing senior attorney to delegate a less-critical fact witness, eyewitness or family member for a younger attorney to examine. A midlevel attorney should be well equipped to handle an actuarial economist or treating physician, where the triable issues are not hotly contested. When in doubt, delegate a few of the dozens of motions in limine to the aspiring trial lawyer.
Trial experience in any capacity has value, but exposure to complex trials can be invaluable. Junior and midlevel litigators spend the majority of their time conducting discovery. When that attorney sees how discovery evidence is used, spun and woven throughout the course of a trial, it sheds light on the nuances of deposition questioning, expert research and reports and discovery, all of which may end up in front of the jury. Trial experience provides immeasurable perspective on how to go about one’s daily assignments in the office and how to foresee and eliminate problems down the road. Simply put, trial experience doesn’t just make you a better trial lawyer—it makes you a better lawyer, period.
Senior attorneys who fail to recognize the benefits of trial experience for their younger colleagues are doing themselves and their clients a disservice. Senior attorneys should not overlook that as they continue to age, their juries become relatively younger. That means with every year, every breakthrough in technology and every change in contemporary culture, the senior trial lawyer’s experiences grow further from the realities in which their jurors live.
Further, if senior attorneys would rather have their associates cut their teeth on smaller cases, then there is a simple solution: Take on a few smaller cases. Many successful corporate litigation firms encourage young and midlevel associates to take federal prisoner civil rights cases and pro bono cases in order to gain valuable trial experience and build relationships with federal judges. Plaintiffs firms could follow suit, or they could take on a handful of smaller injury claims in order to help train their less experienced attorneys and strengthen the overall quality of their representation.
The notion that the decline in trial opportunities is out of anyone’s control, or that senior attorneys have no role in staffing these cases, is disingenuous. The trial bar cannot look back on the past two or three decades, declare that the “good old days” are gone, and throw up their hands. Perhaps the “good old days” were good because a higher emphasis was placed on mentorship. Perhaps there were more opportunities to gain trial experience because someone who sat in the first chair leaned over to the younger attorney in the second chair and said, “Hey kid, you’re up.”
Younger attorneys also bear a responsibility to ensure that they gain trial experience. If you want to be a trial attorney, you must make that your focus. Within your firm, express your desire to participate fully in any cases poised for trial that you are assigned to. If that means you are charged with questioning an ancillary witness, you have at least managed to get your feet wet. Outside of your firm, look for opportunities to try pro bono matters.
Ultimately, the trial bar has a professional obligation to ensure that the next generation is well equipped to carry the torch. The right to trial by jury deserves more than lip service. Our system of justice remains founded on the belief that in a courtroom, even the mightiest of corporations or government entities stands as an equal to the person of the smallest means. If trial lawyers believe in these principles, then the trial bar has an obligation to the profession and to the community to ensure that people can continue to call on experienced trial lawyers to voice their concerns and advocate for justice. If the so-called “golden age” ignores these concerns, then the golden age is not golden at all—it’s just graying.
Five Ways Senior Attorneys Can Help
• Find a suitable role for your midlevel or younger associates at trial. As described above, afford them an opportunity to take less significant or less complex witnesses at trial. Let them graduate to conducting the direct examination of a family member of the client or a less important fact witness. Let them graduate to presenting an easier expert witness, cross-examining a noncontentious fact witness or making an opening statement.
• Take a few smaller cases or encourage associates to accept pro bono and federal civil rights cases.
• Consider delegating some arbitrations. They are like mini-trials, with a limited number of witnesses and at least one speech. Taking smaller cases will not hurt the bottom line; it will raise the quality of your younger attorneys’ performance and ownership in the firm’s success.
• Use mock trials and jury focus groups. Someone has to play the role of opposing counsel, so why not draft a young attorney to handle all or some of your opponent’s case in chief?
• Mediations and settlement conferences have trial-like components, including opening statements, persuasive use of demonstratives and deposition testimony, and occasionally a Q&A between the lawyer and the client. These are relatively low-risk opportunities to let your associate stand on his or her feet and address a neutral party on the important issues in the case. The senior attorney can review the associate’s prepared presentation in advance and add to or clarify the actual presentation as needed. Further, there is less reason to be anxious, as experienced attorneys know that most settlements will be determined by the substance of their case, not the showmanship of their presentation.
Five Ways Young Attorneys Can Gain Experience
• Ask. And ask again. Make your intentions clear. Consistently inform the senior lawyers at your firm that you are looking for opportunities to contribute during trials.
• Seek out specific opportunities on the cases you are handling. If you have worked up a file for a significant amount of time, then you know which witnesses are more or less important and which ones will be more or less contentious. Be strategic with your request and only ask to examine the witnesses that you believe you can handle. Then, demonstrate that you are ready for the job by explaining your strategy and game plan for the witness, either in person or with a draft examination.
• Keep track of trials in your office that are being handled by other attorneys and volunteer to second or third chair.
• Volunteer through programs like Philadelphia VIP, Support Center for Child Advocates and the federal prisoners program.
• When given an opportunity to make a first impression, take it seriously and demonstrate that you are capable of making an important contribution on the next trial.
YL EDITORIAL BOARD
Jo Rosenberger Altman
Leigh Ann Buziak
Rob Stanko, chairman
The Young Lawyer Editorial Board is composed of members of the
legal profession. They serve voluntarily. Through their ongoing
exchange of views, members of the board attempt to develop consensus
on issues of importance to the bench, bar and public. Members of the
legal community are invited to contribute signed op-ed pieces.