Bill Drury has been traveling a lot lately.
“I’ve got two cases in Hawaii, one in Salt Lake City, I did one in Atlanta and another in San Francisco,” says the shareholder from Renaud Cook Drury Mesaros.
It’s not that there aren’t good attorneys in the cities to which Drury has traveled. It’s just that Drury has a certain skill set that has been increasingly more difficult to find.
“There are a ton of litigators, but there aren’t that many experienced trial attorneys,” Drury says.
Over the past 20 years, fewer lawsuits are going to trial because an increasing number is being settled out of court through alternative dispute resolution and mediation.
“It’s not that it’s wrong to do alternative dispute resolution or arbitrations because they are cost effective and bring litigation to a close much sooner,” Drury says. “The problem is, when cases are resolved that way, lawyers don’t have the opportunity to go to court and because cases are not getting into the courtroom, the number of experienced trial attorneys is diminishing with the passage of time.”
According to Pouria Paknejad, principal at Smith-Paknejad, four issues underpin the reduction in the number of civil cases going to trial:
• Increased risk aversion
• Fees and costs associated with taking a case to trial
• The potentially negative exposure related to putting a dispute in the public domain
• The ascendancy of mediation and arbitration in lieu of litigation
“Companies today are very focused on cost certainty,” says Doug Northup, director at Fennemore Craig. “We are finding that many clients prefer the certitude of a negotiated settlement to be preferable to trial, even if the settlement amount is higher than what would otherwise be considered ‘a good deal.’”
Two things stand out for Paul Stoller, shareholder with Gallagher & Kennedy, as reasons for the decrease in the number of cases going to trial.
“First, most courts, including those in Maricopa County, require that cases go through a settlement conference or mediation before they can be set for trial, and those have been effective at settling cases,” Stoller says. “Second, business clients in particular have recognized that litigation is inefficient for them and become more sophisticated in trying to evaluate and resolve cases early to avoid the costs.”
Impact of reduction
The reduction in the number of cases going to trial has had some obvious and some less obvious impacts on the legal profession.
“First, the number of commercial litigation cases filed is down,” says Edward F. Novak, shareholder at Polsinelli. “We still see a steady stream of personal injury matters, debt collection and miscellaneous smaller matters. The decrease in large commercial matters means that clients are open to resolving their disputes in ways that don’t require a trial.”
While at times difficult from a law firm economics perspective, Novak says this has helped reduce the backlog in litigation cases and has, in many instances, resulted in a swifter resolution of complex commercial disputes.
“One potential drawback to having fewer trials is that the less trial experience trial attorneys receive, the less experience they have if they become judges,” Novak says.
And, according to John O’Neal, partner at Quarles & Brady, “It has created a number of lawyers who focus on the processing of lawsuits rather than actual adjudication and truth-finding.”
While the reduction in the number of cases going to trial has impacted the legal profession, experts say the impact on the businesses facing lawsuits is minimal.
“The legal system has been and will remain the system for resolving disputes, and fewer trials is not going to change this fact,” O’Neal says.
With fewer experienced trial attorneys, Novak says the person looking to hire one should remember that fewer than 10 percent of cases go to trial.
“Often, the best result is the one resulting from a mediation, arbitration or simply the negotiation between lawyers,” Novak says. “Trials are expensive, anxiety producing and time consuming. So, hire the best lawyer in the area of law applicable, make certain you can afford that lawyer and then hope you don’t have to go to trial.”
Looking to the future
With fewer trials, experts agree it is difficult to groom the next generation of trial lawyers as in past generations. But there are plans in motion to give younger attorneys their day in court.
“There is a nascent trend among ‘BigLaw’ and ‘AmLaw’ firms that allow their fourth-, fifth- and sixth-year associates to argue briefs before the court to make those attorneys comfortable in the courtroom environment and to reward them for the hours they put into those files,” says Paknejad. “If this trend continues, then the profession can take some solace in the fact that the problem is, at minimum, recognized by our peers.”
Ben Himmelstein, partner at Radix Law, says another way to get more courtroom experience is to take on smaller cases, especially where the client is more “fee-sensitive.”
“Usually a younger lawyer will have more opportunity in those types of cases,” Himmelstein says.
What can the legal profession do to get young attorneys more courtroom experience?
Robin E. Burgess, shareholder at Sanders & Parks, thinks attorneys need to be proactive in identifying opportunities for younger attorneys to gain trial and courtroom experience.
“This could mean bringing associates to trial in lieu of paralegals, giving associates ‘credit’ for attending trials even if their time is not billed to the client, or finding smaller matters or pro bono matters that will allow associates the opportunity to run with the ball and gain real-world experience in a courtroom.” Burgess says. “Often, a younger attorney is invaluable for handling legal research issues during trial that would otherwise be time consuming and potentially distracting for lead counsel to address while focusing on witness and expert preparation. If this value is properly conveyed to clients, often they will see the benefit of the younger associate’s involvement.”
The bottom line is that even though the number of experience trial attorneys is dwindling and there hasn’t been an effective method put into place to replace their shrinking numbers, the need for them hasn’t stopped.
“You’re always going to have the need for experience trial attorneys, especially in big cases,” Drury says. “The client will always need someone who can actually try the lawsuit when needed.”
Finding a trial lawyer
What should a business owner or executive look for when seeking trial attorneys for a case she/he wants to take to trial?
Robin E. Burgess, shareholder, Sanders & Parks: “Although an enthusiastic litigator is a must, the litigator must have the experience and ability to identify risks and address them thoroughly with the client. An attorney who asks tough or uncomfortable questions is probably going to build a better case than one who is simply aggressive.”
Gregory W. Falls, member, Sherman & Howard: “Trials are fun for lawyers, judges, and their staffs, but not for the parties themselves. Someone who wants to go to trial from the beginning is trying only to prove a point or has unrealistic expectations. Both of those are potential red flag cases. Look for a team with broad experience. Most of the work will be done before trial. Can they do that? Can they mediate successfully? And finally, if trial becomes necessary, does someone on the team have that experience?”
Ben Himmelstein, partner, Radix Law:
“Many people think they need a ‘bulldog.’ The phrase is interesting because bulldogs are slow and not very aggressive. The more appropriate thing to look for is somebody who is a tactician. Strategy in litigation is everything. You need someone who loves to play chess or, as I call it, ‘psychological warfare.’”
John, C. Norling, managing attorney, Jennings, Strouss & Salmon: “Obviously, trial experience is key. Knowledge of the business industry is also important. A client should not have to educate an attorney on its industry.”
Pouria Paknejad, principal, Smith-Paknejad: “Whether you are a plaintiff or a defendant, your first question in hiring a litigator should be, ‘What is your trial experience?’ Hiring an experienced trial lawyer, as opposed to an experienced litigator, will pay dividends if your dispute does not settle.”