“Jury trials are going the way of the dinosaur.”
“Mandatory mediation has taken trials away from us.”
I have heard some version of these quotes for the better part of the last two decades while practicing across two different states. The words are usually uttered by gray-haireds boasting how they built skills and reputations as top trial attorneys based on trying “hundreds of cases” throughout their careers, yet bemoaning that young lawyers today have no chance to become as good or as experienced as they because of the dearth of jury trials.
It's a crock. Trials haven’t gone anywhere, 2020 and 2021 notwithstanding. Perhaps attorneys aren’t trying a dozen cases a year anymore, but there remains a need for competent trial attorneys and likely always will.
So where do we find them?
Getting an attorney with trial experience to join a firm laterally certainly can and does happen on occasion, but the stars and the dollar signs must align perfectly. And how did those lateral hires get their experience? They had to start somewhere.
My first jury trial was a small claim property damage subrogation case. I worked for a firm that had a “mill” small potatoes property damage subrogation department. When they didn’t have enough subrogation attorneys to handle all of their trials on a given day, they’d find an unsuspecting insurance defense attorney (i.e., me) with an open calendar day and put the file on her desk. “Show up for trial tomorrow. Have fun.” Baptism by fire.
I remember that first trial well, likely because I did not sleep the night before. I used my law school trial advocacy textbook to help prepare (a valuable tool I kept handy for years) but I was as green as they come. Luckily for me, my opposing counsel was kind enough to nudge me to stand up when the judge or jury came into the room. I lost the trial, but gained my first trial experience. Yet my “preparation” could have been much better.
We didn’t come out of law school with great trial skills. We had people to show us how to do it (and in some cases how not to do it). It is up to us to develop our future trial attorneys. But how?
Here are a few ideas.
Get Them in the Courtroom ASAP
When hiring new law grads, look for coursework and clinics that got them in-the-courtroom experience, no matter what level. Observing courtroom decorum and the practice in action is a great first step. Law students who sought out such experience via their coursework likely actually want to be in the courtroom.
Bring Them Along and Talk to Them
“But it takes so much more time to train someone than to just do it myself.” Yep. Do it anyway. Take your young attorneys to depositions, mediations, motion hearings, and trial. Talk to them before about the process, your preparation, your strategy, your expectations. Talk to them after to debrief. How did it go? What questions do they have? What did they think of the witness, other attorney, judge? What did they learn? If you are in an hourly billing practice area, this can be tough, as it takes more of your (nonbillable) time and your young associate most likely won’t get paid to tag along.
Do it anyway.
Gather the Team
Hold regular meetings of all trial attorneys in your firm. Discuss recent motion rulings, trends seen, tactics used by opposing counsel. Roundtable cases, discuss the factors that go into predicting how a jury may value a case.
In my experience, even seasoned trial attorneys learn by discussing cases in a group setting. Have the young attorneys write down their case valuation before others share in order to avoid them changing their answer to match the others’. Have them explain what they considered in coming up with their valuation. Discuss why yours may differ.
The Second Chair
Have young associates observe jury trials. If possible, have them second chair with you.
I had always been of the mindset that, as a defense attorney, I didn’t want to create the visual that I had some “big, expensive team of lawyers” ganging up on a plaintiff.
Guess what? Plaintiffs often bring two attorneys and one or two paralegals to trial. Even if your young associate serves more as a paralegal – i.e., assisting with exhibits and technology – than an actual second chair, she will gain valuable experience by seeing the entirety of the proceedings, “soup to nuts,” asking questions and giving feedback. On the defense side, some clients will agree to pay for this, either at an attorney or paralegal rate, which is a bonus.
Start Mentoring Early
Lastly, participate in the State Bar of Wisconsin
Diversity Clerkship Program.
Through this program, 1L students at Marquette and U.W. law schools are paired with law firms for a paid summer internship. The program gives the students access to valuable practical legal work experience while at the same time, law firms can get an early look at a potential future hire.
Law firm applications typically close in mid-January, well before the summer internship starts. Check the State Bar website for more details.
Conclusion: Yes, It Takes Effort
The point is this: we must find, mentor, and inspire our future litigators as early as possible.
This article was originally published on the State Bar of Wisconsin’s
Litigation Section Blog. Visit the State Bar
sections or the
Litigation Section webpages to learn more about the benefits of section membership.