The Disappearance of Trials

The lifecycle of a case can end in many different ways. Early on, the court may dismiss the case after a defendant’s successful motion to dismiss. The parties could also choose to settle the claims at any time. A plaintiff may also decide to withdraw their complaint entirely. Arguably the most renowned outcome of a case is trial. Trial, a favorite scene in many tv shows and movies, has its own type of novelty. The arguing, witness testimonies, surprising evidence, and jury decisions all add to the excitement of a trial. This notable ending to the lifecycle of the case, however, is starting to disappear. Methods of alternative dispute resolution like mediation and arbitration can be successful alternatives. Plea deals and settlement often end a case before it sees a trial, where 95% of criminal cases are resolved by plea deals in some jurisdictions.[i] “[I]n 1938, approximately 20 percent of all civil cases were resolved by trial.”[ii] Now, only about 1% of federal civil cases have trial resolutions.[iii]

Trials can be difficult. It can be a long and gruesome process for many involved. Attorneys can spend months or even years on one case leading up to the trial. Filing motions, discovery, and hearings take time. Trial itself can last days or even weeks and can be a long and grueling process for many involved. Witnesses may testify about difficult or traumatic events, and juries can be unpredictable. “One of the reasons for the decline in civil jury trials is the formation of a bias against juries.”[iv] Not only can trial be emotional and time-consuming, but it can also be expensive. Attorney’s fees, expert witness costs, and other expenses can add up quickly. In recent years, alternative dispute resolution’s increasing availability has been a significant factor in the decrease of trials.[v] In a nutshell, a case going to trial is risky. Given these considerations, it is no surprise that the often risk-averse lawyers advise clients that other case outcomes may be more beneficial than taking the case to trial.

Practice makes perfect, but if there are fewer and fewer trials to train on, attorneys have a greater difficulty mastering the art of trying a case.[vi] This blog will discuss whether the disappearance of trials will raise concerns about lawyers being ethically competent to conduct trials in the future.

Will Attorneys Remain Competent to Conduct Trials with Less Trial Training Available?

With the disappearance of trials, the role of being the trial attorney is becoming more and more coveted. Often, junior attorneys may wait years before seeing the inside of a courtroom, and being first-chair in a trial takes even longer. With more lawyers and less trials, “there is an entire generation of litigators for whom trial is merely a theoretical concept.”[vii] The result of a more theoretical approach to trial is less trial training and preparation. Junior attorneys are often able to shadow lead attorneys during trial, but if there are no trials to shadow, this method of training is less helpful. Law firms often maintain their own trial training programs for incoming attorneys, but this requires time, money, and resources. Law firms are businesses at their core, so if trials occur less often, putting funding towards trial training may be less practical.

If the upcoming classes of attorneys are unable to gain experience and practice conducting a trial, it raises the question of whether attorneys will remain competent enough to conduct trials. Model Rule 1.1 requires that attorneys be competent, specifically that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[viii] Trial requires specific skills and much preparation from the attorney. Witness preparation, voir dire, and admitting evidence are just a few of the skills an attorney needs to conduct an adequate trial. Chief Justice Burger described what he thought was trial incompetence, including

“poor preparation, inability to frame questions properly, lack of ability to conduct a proper cross-examination, lack of ability to present expert testimony, lack of ability in the handling and presentation of documents and letters, lack of ability to frame objections adequately, lack of basic analytic ability in the framing of issues, lack of ability to make an adequate argument to a jury, and lack of basic courtroom manners and etiquette.”[ix]

Under Model Rule 1.1, an attorney’s unfamiliarity with court rules and trial conduct can lead to a violation of the rule of competence.[x] While, it is understandable that experience and confidence in trial takes time, “[y]outh does not insulate anyone from charge of incompetence or negligence.”[xi]

Lawyers who have never been to trial will have difficulty evaluating the advantages or risk of taking a case to trial.[xii] Risk analysis is an essential part of a lawyer’s responsibility to further the best interest of their client. Throughout the life of a case, a lawyer must constantly weigh the risks associated with continuing the case or ending it through the various outcomes. As the case goes on, additional discovery and time may strengthen or weaken the case. The longer a case goes on the more it will cost a client, even exceeding insurance coverages. Sometimes lawyers are faced with the decision about whether it is best to settle or to try the case to a verdict.

Violating the standard of competence in trial technically requires more than a lack of experience. Typically, a competence violation is a high bar, where “an attorney’s conduct must be somewhat egregious to be considered incompetent….”[xiii] Even an attorney who does not thoroughly interview witnesses does not always rise to the level of violating the rule of competence.[xiv] Violating the rule requiring competent representation, however, is not impossible. In In re Young, an attorney was sanctioned to a six-month suspension from the practice of law for ethical violations relating to a lack of trial preparation.[xv] The attorney “admitted that he failed to prepare for trial, because he did not believe the case would ever go to trial.”[xvi] The court found that the “fail[ure] to adequately prepare for trial… violated Rule 1.1(a).”[xvii] While it requires an egregious failure by the attorney to rise to the level of a competence violation, a failure to adequately prepare for trial can rise to that level and be found to be incompetent representation by a disciplinary committee.

If attorneys are unable to gain valuable trial training, the future of trial lawyers becomes very bleak. Without adequate training, meeting the competence requirement to take a case to trial becomes more difficult. To be competent to conduct a trial, an attorney needs to have the specific knowledge and skill of how to try a case. Without the proper training, an attorney will not possess what is needed for competence.

Conclusion

Competence requires knowledge and skill. Often, the best way to learn to be a trial attorney is through practice and experience. As trials begin to disappear due to expenses and other methods of ending cases, there are fewer and fewer opportunities for attorneys to gain the requisite knowledge and skill to be competent trial attorneys. As the volume of cases going to trial begins to disappear, one has to wonder if trials will become rarer and rarer, or even become myths or legends. Today, most law schools have meaningful opportunities to gain practice for these skills with trial practice courses and moot court teams. Law firms also often maintain their own training programs and shadowing opportunities for lawyers to gain these skills. However, as trials become a distant reality, the demand and financial support to needed to maintain these training opportunities in law schools and law firms will decrease.

If there are naturally less trials, there is less of a demand for trial attorneys and training. Maybe the extinction of trials is a natural process as the legal profession turns to other methods of dispute resolution. However, the idea of a natural ending of trials and the role of trial attorneys seems like an unsatisfying result. While there are currently ample opportunities for lawyers to become trial competent, the continued decrease in trials and lower demand for trial training could eventually lead to an inability for lawyers to remain competent trial attorneys.

 

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[i]  Hon. Ron Spears, The Real Prisoner’s Dilemma: Plea Deal or No Plea Deal, 100 Ill. B. J. 442, 443 (2012).

[ii]  Jeffrey Q. Smith & Grant R. MacQueen, Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does it Matter?, 101 Judicature 26, 28 (2017).

[iii]  Id.

[iv]  Tracy Walters McCormack & Christopher Bodnar, Honesty Is The Best Policy: It’s Time to Disclose Lack of Jury Trial Experience, 78 Tex. B. J. 210, 211 (2015).

[v]  Smith & MacQueen, supra note 2, at 33-34.

[vi]  Jill Switzer, Where Is the NextGen of Trial Lawyers?, Above the Law (Oct. 26, 2016), https://abovethelaw.com/2016/10/where-is-the-nextgen-of-trial-lawyers/ (“Trial experience is invaluable and the only way to get it is to try cases, not litigate them.”).

[vii]  McCormack & Bodnar, supra note 4, at 210.

[viii]  Model Rules of Prof’l Conduct R. 1.1 (2023).

[ix]  Chris Blair, Trial lawyer Incompetence: What the Studies Suggest about the Problems the Causes and the Cures, 11 Cap. U. L. Rev. 419, 421 (1982).

[x]  Christopher Sabis & Daniel Webert, Understanding the “Knowledge” Requirement of Attorney Competence: A Roadmap For Novice Attorneys, 15 Geo. J. Legal Ethics 915, 922-23 (2002).

[xi]  Id. at 927.

[xii]  McCormack & Bodnar, supra note 4, at 211-12 (“Rather, this lack of experience has the potential to impact nearly every decision made by the litigator…. Even if a litigator accurately predicts jury-value, the ability to objectively assess an opposing settlement offer may still be negatively affected by a litigator’s lack of jury trial experience.”).

[xiii]  The Florida Bar v. Rose, 823 So. 2d 727, 730 (Fla. 2002).

[xiv]  Id. at 731.

[xv]  In re Young, 849 So. 2d 25, 32 (La. 2003).

[xvi]  Id. at 27.

[xvii]  Id. at 28.