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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 recent annual conference in Atlanta. There, 5th U.S. Circuit Court of Appeals Judge Patrick E. Higginbotham blamed the falling numbers on clogged dockets, where cases flow through the courts “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. The practical effect to law firms, however, is a gap in their associates’ skill set. As a consequence, firms are having to find new ways to give their younger attorneys vital courtroom experience. Even though the number of jury trials is dropping, firms still need attorneys who can convincingly bluff their opponents into believing a trial is imminent and can argue a motion before a judge. And on those increasingly rare occasions when a dispute lands in front of a jury, firms want lawyers who can handle the pressure. Providing attorneys with trial experience is “a real struggle,” said 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,” said O’Connell, who practices securities and business litigation. He added that the way the firm trains its litigators has “evolved considerably.” As is the case with most large firms, Nixon Peabody hires private consultants to teach its 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, said that many lawyers in firms across the country are not receiving the preparation they need to try a case and, more importantly, to serve their clients in the best way possible. “There are lots and lots of lawyers who are not getting the kinds of experiences that they used to get even handling small cases,” he said. The South Bend, Ind.-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 at its own venues or on-site at firms. Rose said that NITA’s services are more popular than ever because even the more seasoned attorneys at law firms lack the trial experience to train younger lawyers. Still, he said that the best way for young lawyers to get comfortable with trying a case is to do it. “Would we love to go out of business? Probably yes,” he said. The lack of trial experience can be a disservice to clients because attorneys are not prepared to take the case all the way, Rose said. And if they are not comfortable with that, trialworthy matters can settle prematurely. “If they’re not thinking of it in that way, they realize, ‘Oops, I’m going to trial,’ and they start sweating,” he said. Between 1962 and 2002, the number 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 more than 20 percent over the same period, starting at 5,802, peaking to 12,529 in 1985 and falling to 4,569, the report concluded. The decline occurred despite a fivefold increase in cases resolved, from about 50,000 to almost 260,000. Federal criminal trials fell from 15 percent to 4.7 percent. The report attributed the decline, in part, to costs and risks of going to trial and to alternative forms of resolution. It also cited an emphasis by the judiciary to resolve rather than preside over cases. At the ABA conference earlier this month, some members of the panel that focused on the issue suggested that fewer trials are here to stay, and that the judicial system should rethink how it operates its courthouses. Yale Law School Professor Judith Resnik, for example, said that one-half of all courtrooms are “dark” because judges have fewer trials. State numbers also reflect a sharp drop in jury trials. According to data compiled by the National Center for State Courts, from 1993 to 2002, civil trial dispositions dropped from 27,567 to 19,264. In California, for example, trial dispositions fell from 4,927 in 1993 to 2,688 in 2002. In Michigan, they declined from 1,119 to 569. To make up for the fewer opportunities young lawyers have to try cases, Chicago-based Kirkland & Ellis also conducts in-house training, hires consultants and promotes pro bono work. Partner Marjorie Lindblom, a 26-year veteran of the firm’s litigation team, said mock trials and in-house preparation have 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 said. “In mock trial situations, it’s easier just to focus on what you’re doing without thinking about the overall impact.” To provide that real trial experience, some New York firms participate in a 2-year-old program with the city’s Corporation Counsel’s Office. About 30 firms “donate” associates to try civil cases for the city. In return, it gets young lawyers from some of the world’s best firms. Recruiting lawyers from U.S. Attorneys’ and district attorneys’ offices is another way to make up for the shortage 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 10-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,” he said.

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