By Aukjen Ingraham · Listen to article
Both in-house counsel and law firms face an acute problem today: It’s difficult for attorneys to gain trial experience or to hire other attorneys who have that experience.
Fewer cases are being tried, and the cases that are tried are riskier, creating a challenging environment for those who want to gain more courtroom experience. A new approach is required to ensure that teams have seasoned trial lawyers on staff far into the future.
Some law partners on the verge of retirement have 100 to 150 civil jury trials under their belts. In their day, jury trials were common, and it was not unusual to try 10 to 15 cases a year. These days, a lawyer trying four to five cases in a year is an outlier.
There are a few different reasons for this. In general, companies shy away from the risk of a jury trial or are willing to settle for defense costs. Many of the cases that now get tried are the big ones — the bet-the-company cases, such as a small family-owned business facing a multimillion-dollar lawsuit — where the stakes are high and the only choice is to go forward.
The good news is that legal teams can take steps to ensure great trial lawyers are available in the years to come.
Treat trial lawyers as specialists.
Trying a case is an art. Not everyone is good at it. Not every lawyer even likes it. I regularly see lawyers picked to try cases for their subject matter expertise and utterly fail to communicate that expertise to a jury. What is the point of hiring the best and the brightest if they cannot explain to the jury why they should care about what happened?
If having a subject matter expert is absolutely critical to a case, just make sure that they are paired with a trial expert. For instance, as a trial attorney, I regularly collaborate with partners who are subject matter experts to come up with a trial strategy, including themes and a presentation plan.
At the end of the day, it’s not how much you know about a subject, it’s how you break down that subject into digestible pieces for a jury.
Give permission to tag-team.
I took my first deposition within a week of starting to practice law, and I argued my first appeal in front of the Oregon Court of Appeals within my first year. I had never seen either done before I was out there doing it. For me, that was both exhilarating and terrifying, and it’s a learning process the industry can improve on.
We don’t tend to throw our young lawyers to the wolves like that anymore. We engage in a yearslong process to train them. Part of that process should be taking less experienced lawyers to trial. While they may not examine a witness the first time, they can provide value in other ways, including observation of the jury and keeping track of objections.
This increases a lawyer’s exposure to the courtroom, which is critical to developing one’s own trial skills and style. Most of these cases are so big that they require at least one other lawyer at counsel’s table, if not two.
Support trial lawyer training programs.
As a young lawyer, I participated in the American College of Trial Lawyers‘ Jury Trial Experience Project. As part of the project, I took a one-month leave of absence from my firm to try criminal misdemeanor cases for our local district attorney’s office on a pro bono basis.
I tried my first jury trial against another civil lawyer working with the public defender’s office. The experience of seeing a case from start to finish was invaluable and truly helped me understand the stakes of a jury trial.
There are numerous opportunities for young lawyers to gain courtroom experience, and firms should help facilitate such training. In addition to many local agencies offering partnership opportunities, the American Bar Association and the American Board of Trial Advocates offers an excellent lawyer training program called the National Trial Academy.
The ABOTA program is a weeklong program that allows less experienced lawyers to take a case from opening statements to closing argument. Every lawyer that I have spoken to about the program and other similar programs came away with confidence and a better understanding of trial mechanics.
Ultimately, building in opportunities for new lawyers to gain trial experience is essential to providing excellent advocacy far into the future. As an industry, we need to set our young lawyers up for success with a supportive and relatively low-stakes learning environment.
In addition to the need to support emerging trial attorneys, another key aspect of addressing the trial experience gap is selecting the right trial lawyers for your firm or for a case.
In 20 years of practicing law, I’ve had the pleasure of working for, with and against some of the best trial lawyers in the country. I’ve also worked with excellent in-house counsel, who sometimes inherit the qualities of seasoned trial lawyers or were even trial lawyers themselves.
Today, with fewer cases being tried, it can be difficult to identify lawyers with substantial trial experience. If you find yourself seeking a trial lawyer, consider these three questions.
1. What is their track record?
I firmly believe that trying a case is not always about winning. For example, none of us want our district attorneys racking up wins instead of focusing on seeing justice served.
In addition, as attorneys, we cannot disclose a lot of information without client permission. I once had an in-house lawyer call out that I did not list my successful trials on my law firm profile. Their point was that if I don’t tell anyone, how can potential clients know I’m a trial lawyer?
When interviewing trial lawyers, inquire about their best piece of legal work, and why they believe it’s their best work. They might not be able to disclose all the details, but their answer could reveal a glimpse of their experience and style.
2. Are they likeable?
A jury doesn’t have to like a trial lawyer, but it sure helps.
I find myself dividing trial lawyers into two general categories: those who could be called charismatic and those who have more of a professor style. If you find someone with both of these qualities — and I’ve only met a few — you have hit solid gold.
One of the most charismatic trial lawyers I have seen belted out a “good morning” to potential jurors that immediately resulted in a room of 100 people saying “good morning” back. His opposing counsel did not get the same reaction. When charismatic people speak, they hold all the attention in the room.
On the other hand, professor types tend to grow on a jury throughout the case. They build trust. They explain concepts well and demonstrate to jurors that what they’re saying is reliable.
I know a lawyer who will tell you that the longer a case goes on for him, the better. Because he has a professor style, it’s common for the judge and opposing counsel to look to him to remember what happened on the second or fourth day of a 21-day trial, and he has the answer.
Either charismatic or professor-type lawyers can get the job done. If you have a great story to tell, I might give the edge to a charismatic lawyer. If you have a case with technical content, I might lean slightly toward a lawyer who leverages the professor style.
In my experience, juries appreciate authenticity and honesty, sometimes in unexpected ways.
As part of my pro bono service, my first jury trial involved prosecuting a man for the charge of soliciting a prostitute in a criminal misdemeanor case. I took this case very seriously and my demeanor matched that seriousness.
After the verdict, one juror told me that it was a good thing I smiled during voir dire because otherwise she never would have known I had a sense of humor. Laughing through that case would not have been suitable, but displaying some human emotion is certainly appropriate.
Indeed, there are risks to not being authentic. It is hard to fake appearing natural. If you try on someone else’s personality, a jury will likely sense that something is off and perhaps make the wrong conclusions from the cues they receive.
If a lawyer starts out courteous and deferential, for example, and then becomes aggressive and snarky, a jury is going to notice a lot more than if that lawyer started with their natural style. You cannot be someone you’re not. A jury will sniff that out.
At the end of the day, trust your instincts when selecting a trial lawyer. If you like a lawyer and the way that they interact, odds are that a jury will too.
3. Do they have time for you?
Most of us who do trial work love it. We don’t want to do anything else. But it comes at a cost. We say goodbye to our families, friends and pets for days on end. We work long hours before and during trial. The stress level is high, especially in a high-stakes case. Sometimes we live with that case for years.
Good trial lawyers are choosy. They don’t have to take every case. You may have to convince a good lawyer to take you on. Find a compelling reason that they should take your matter, e.g., that it is an interesting factual case, that the lawyer has the potential to make new law, or that the lawyer could appear in a particular court of interest, such as the U.S. Supreme Court.
And also keep in mind that trial lawyers have different collaboration styles. Ask your potential trial lawyer what their style is. I tend to have a foxhole style of collaboration — when the case is hot, we’re talking every day.
Consider what your collaborations style is. Will it fit with the lawyer you have chosen? For example, some clients want daily communication even if nothing happens. Others prefer weekly or even monthly updates in a particular format.
Do you want to be part of the strategizing, or do you want to leave that all to your lawyer?
In conclusion, there are thousands of lawyers who call themselves litigators, so choosing a trial attorney who is a good fit is vital. These considerations will help you select trial counsel who have the experience you need.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
A version of this article was originally published in Law360.
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