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Whether the shrinking number of jury trials is good or bad news depends on whom you ask, but one thing is certain: Fewer trials mean fewer trial-ready lawyers. By some estimates, jury trials have declined to less than 2 percent of all cases filed. The decrease is so pronounced that it sparked a confab of judges, scholars, and practitioners at the American Bar Association’s annual conference in Atlanta in August. There, U.S. Court of Appeals for the Fifth Circuit judge Patrick Higginbotham blamed the falling numbers on clogged dockets, where cases flow “like a rat through a python.” Although some legal professionals say that the downturn in trials has led to the faster disposition of cases, others decry the decrease as an erosion of the American justice system. One tangible effect is that associates are not getting courtroom experience, and firms are having to find new ways to train them. After all, firms still need lawyers who can bluff opponents into believing a trial is imminent and can argue a motion before a judge. And, in those increasingly rare occasions when a dispute lands in front of a jury, lawyers have to be able to handle the pressure. Giving attorneys trial experience is a struggle, says Scott O’Connell, a partner in Nixon Peabody’s Boston office. “The larger the firm, the higher-exposure cases you have, and the less likely it is for lawyers to get in front of a jury,” says O’Connell, who practices securities and business litigation. Nixon Peabody hires consultants to teach associates to handle trials, in addition to having them participate in arbitrations and in-house seminars. Pro bono cases also give young lawyers courtroom time. But Laurence Rose, executive director of the National Institute for Trial Advocacy, says this isn’t happening often enough. “Lots of lawyers are not getting the kinds of experiences that they used to get even [by] handling small cases,” he says. The South Bend, Indiana � based nonprofit run by Rose, also a professor at the University of Miami School of Law, teaches trial skills to lawyers, students, and law school faculty. Rose says NITA’s services are increasingly popular because even the more seasoned attorneys at law firms lack sufficient trial experience to train younger lawyers. The best way to get comfortable with trying a case is to do it, he says: “Would we love to go out of business? Probably yes.” Lack of trial experience can be a disservice to clients because lawyers who are not ready to go to court are more likely to settle prematurely, Rose says. Between 1962 and 2002, the portion of federal civil cases resolved by trial plunged from 11 percent to 1.8 percent, according to a January ABA report, “The Vanishing Trial.” And the number of trials per year showed a net drop of 20 percent over the same period, starting at 5,802, peaking to 12,529 in 1985 and then falling to 4,569. The decline occurred despite a fivefold increase in cases resolved. Federal criminal trials fell from 15 percent to 4.7 percent. The report attributed the decline, in part, to the costs and risks of going to trial and to alternative resolution. Members of the recent ABA panel addressing this issue said the number of trials is not apt to rebound any time soon. Yale Law School professor Judith Resnik, for example, said that one-half of all courtrooms are “dark” because judges have fewer trials. State data also shows a sharp drop in jury trials. According to the National Center for State Courts, from 1993 to 2002 civil trial dispositions dropped from 27,567 to 19,264. Chicago-based Kirkland & Ellis makes up for the lack of trial experience with in-house training, consultants, and pro bono work. But, says Marjorie Lindblom, a 26-year veteran of the firm’s litigation team, in-house preparation has a “different dynamic” from the real thing. “In a real trial, you have to be very thoughtful about making an overall impression on the jury,” she says. “In mock trial situations, it’s easier just to focus on what you’re doing without thinking about the overall impact.” To provide real trial experience, 30 New York firms “donate” associates to the city’s corporation counsel’s office. Recruiting lawyers from U.S. attorney’s and district attorney’s offices is another way to make up for lack of trial experience. But criminal trial experience does not equate to civil trial skills, said NITA’s Rose: “The bottom line is that new attorneys and the five- to ten-year lawyers just don’t get the trial experience that they did 20 years ago, and their clients might not be getting the same results.” A version of this story originally appeared in The National Law Journal , a sibling publication of Corporate Counsel.

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