“The trial lawyer in the courtroom is a warrior. … In the courtroom of old, the contestants fought to submission or death. Each side engaged a champion to fight for them. … As civilization advanced, the warriors in the king’s court were replaced by advocates for each side. Today they are known as trial lawyers.”¹

Nothing in the practice of law is more challenging or rewarding than representing clients at trial. The “art” of trial advocacy “requires us to paint pictures, create images, and tell stories that portray the facts of our client’s plights so vividly that the decider will step into the client’s shoes.”² “Trial practice demands ethics, dedication, focus, perspective, common sense, resolve, study, inspiration, and above all, courage.”³

Unfortunately, it is becoming increasingly rare for new lawyers to gain trial experience, even as a second chair. This is not only a concern for up-and-coming litigators attempting to develop their skills⁴ but also for consumers of legal services, who may have difficulty finding lawyers with the desired proficiency. While the trend is troubling, prospects are optimistic for new lawyers who take advantage of the available opportunities.

To help those wishing to dedicate themselves to trial practice, we bring a series of two articles. This article introduces the problem of increasingly infrequent trials and explores how lawyers new to civil practice can obtain trial experience, while next month’s article explains how new lawyers can succeed in trying cases by starting with some basics and continuing to learn over time.

The Dearth of Trial Experience Among Lawyers New to Civil Law

The number of civil tort cases and trials has declined significantly in the last several decades.⁵ “Plausible causes for this decline [in trials] include a shift in ideology and practice among litigants, lawyers, and judges. Another manifestation of this shift is the diversion of cases to alternative dispute resolution forums.”⁶

Mediation, in particular, has become extremely effective at resolving cases without the cost and uncertainty of trial. However, because mediation leverages settlements by creating fear among the parties, it can be a mechanism for overanalyzing risk and acquiescing to an unjust result. Prominent trial attorney Robert Habush explained how mediation has changed the litigation process and the resulting problems:

“It used to be if you wanted to settle a case, it was face-to-face with the other lawyer. ... Now ... [y]ou have to mediate. ... [I]t has gotten to the point where cases are more about completing a business transaction than about protecting the safety of consumers and workers. And that is not good.”⁷

As a result of the downward trend in civil tort cases and trials,⁸ a generation of lawyers, and more importantly clients, is in danger of missing out on the most important tradition in our profession:

“The loss of the trial would wound our legal order and our democratic government seriously. … ‘[I]f it goes, if our people lose their inherited right to do justice in court, other democratic institutions will lose breath too.’ … [T]he formality and sometimes ritual character of the trial embody a respect for each party, however lowly he or she may be in the ordinary business of life, and stand as a bulwark against a purely instrumental treatment of persons as a mere means to some predetermined end to be pursued bureaucratically.”⁹

The “disappearing trial”¹⁰ is not only a serious social concern but also a practical one. The infrequency of litigators getting to trial is creating a skills gap that will be difficult to bridge in the coming decades:

“The old saw is, practice makes perfect: a lawyer is not born – he is born to practice. We rightly call lawyering the practice of law, because no matter what lawyers are taught, no matter how sterling their education, we become proficient only from having practiced the trial of cases over and over.”¹¹

The scarcity of practice carries over to all stages of civil litigation. For example, lawyers with little trial experience struggle to understand the significance of pretrial activities. According to a managing partner of a large litigation firm, “[i]f you don’t try cases, then it’s difficult to understand the importance of all the steps along the way.”¹² Without trial experience, “it may not even be possible to base settlement on the merits because lawyers may not be able to make reliable estimates of expected trial outcomes.”¹³

There is a risk that the profession will institutionalize an irrational strategy of trial avoidance that could be harmful to clients. For example, there is increasing evidence, particularly in personal injury litigation, that a lawyer’s lack of trial experience results in lesser outcomes. A law review article analyzing settlement practices of plaintiffs’ firms uncovered significant anecdotal evidence linking trial propensity to negotiating power. For example, one insurer “kept a log of plaintiff attorneys, noting which ones were aggressive and which ones caved in.” Other comments included the following:

• “[Trial is] your only weapon. If you don’t show up in that courtroom, you’ve got no bargaining power. If you don’t have a gun, you can’t participate in a gun fight.”

• Q: “You think reputation matters in terms of the offers you’re given?” A: “I know it matters.”

• “If the figure was no good, [insurers] were not worried he would go to trial because he wouldn’t.”

The article surmises that without a reputation for trying cases, lawyers have trouble obtaining top dollar for clients.¹⁴ Civil litigators lacking trial experience may also have difficulty finding employment, obtaining clients, and making partner.

The good news is that lawyers who take advantage of opportunities to try cases will possess a rare set of skills. Those who gain this invaluable experience will hold an extraordinary advantage over their contemporaries: in the job market, retaining clients, developing a reputation, leveraging better settlements, and winning at trial.

Opportunities to Gain Trial Experience

There are many reasons why cases do not get to trial, and even more to explain why new lawyers do not participate. Some include 1) trials are expensive and time-consuming; 2) clients and lawyers are afraid to lose; 3) clients and lawyers are nervous about speaking at trial;¹⁵ 4) clients want the more experienced lawyer handling trials, especially larger ones; 5) trials of small cases are not profitable for law firms or clients; 6) having a second chair is usually not profitable for the new lawyer or law firm; 7) new lawyers are insecure about their lack of experience; and 8) settling is easier.

Because these impediments are powerful, “to get opportunities to develop your trial skills, you will have to fight for them.”¹⁶ So how can you scrap your way into the courtroom? Some ideas follow.

Actively Seek Guidance From Mentors

Early in one’s career, the best way to gain experience is to attend and participate in trials with a supervising attorney. However, even the most benevolent of employers will not prioritize a new lawyer’s development over the interests of the firm. According to trial lawyer and author Rick Friedman, “No matter how kind your employer, no matter how much your boss likes you, no matter what your superiors say about their commitment to developing your trial skills, to them you are mostly – well, a widget.”

To make the most of early development, new lawyers should actively seek mentoring opportunities to maximize their chances of getting to trial. If interested in trial work, consider prioritizing firms where you can realistically expect to attend trials over firms with a higher starting salary and more perks. Treating the first few years of practice like an internship can pay dividends in the long run.

Within firms, new lawyers should try to work for partners who have a reputation for taking cases to trial. Not all litigators are created equal. Some enjoy and pursue trial work, while others are content with settling almost every case. There probably will be occasions to participate when working with the litigators who take cases to trial.

Also take into account which partners have higher volumes of cases. Many senior trial lawyers have progressed to a lower-volume, more complex caseload. These cases tend to be very time-consuming in pretrial stages but not as likely to end in trial.¹⁷ High-volume, lower-complexity work allows for more active participation by associates. More volume likely means more chances for trial.

Lawyers fortunate enough to be mentored by a trial lawyer should make themselves valuable. In other words, “[y]ou’ll be a widget until you make yourself something else.”¹⁸ Taking pride in being detail oriented, thorough, and timely with assignments will showcase your talent and work ethic. This should garner good will from your mentor and lead to increased responsibility. If your work can be trusted, you will add value to your mentor’s practice as the right-hand person and, it is hoped, second chair at trial.

Here are some suggestions for adding value.

Take Pride in the Task Many Trial Lawyers Hate – Legal Writing. Researching and writing briefs and other submissions is time-consuming and tedious, so most trial lawyers assign those tasks to associates. Use legal writing to demonstrate your analytical skills, comprehension of the facts, research ability, and dedication. If you spend the mental energy to write well, you will be worthy of more responsibility.

Make Yourself Integral by Taking Ownership of the Case. In addition to producing excellent work product on assigned tasks, review the entire file. If you notice a witness list, discovery task, or pretrial report is coming due, remind your mentor, and volunteer to do it. Offer to attend and take witness depositions, if possible. If your mentor is open to it, ask questions and talk strategy (but keep in mind that your mentor’s time is valuable). Taking ownership helps you learn and gives your mentor confidence that you are on the right track. Eventually, you will know the case better than anyone, and the mentor will need you to go to trial.

“Give me a frightened young woman standing with shaking knees before the jury, one who cares to the core for her client, one who will show who she is – honest, afraid, involved, and caring – and I’ll give you a lawyer who will win against the best heads and the quickest wits. …” – Gerry Spence

Offer to Attend Trial for Free. It usually does not make financial sense for new associates to bill a client to attend trial. So find a courtroom task you can do (organize and track exhibits, draft motions and briefs, run technology, and so on) and offer to go for free. You will likely have to make up your time, but the sacrifice will be worth it.

Learn to Use Trial Technology and Teach Your Firm About It. Trial software, such as TrialDirector or Sanction, can be a valuable tool for organization and presentation of evidence. Although trial software has been around for some time, many lawyers do not understand its benefits, are afraid to try it, or do not have time to learn it. Showing other lawyers at your firm (either informally or perhaps at a lunchtime seminar) how a technology product works might attract the interest of the veteran lawyers thinking about their next argument or examination. Using software at trial typically requires more than one lawyer, so you can make yourself the go-to second chair by learning it.

Find Ways to Teach Yourself

Whether you are fortunate enough to have a great mentor or are more often left to your own devices, you must take ownership of your development and seek out opportunities to learn.

“How does a lawyer get from law-school graduation to comfort and skill in the courtroom? Here is the first hard truth: Training yourself to become a trial lawyer is completely your own responsibility.”¹⁹

Below are some ideas for “self-mentoring.”

Watch Trials. Almost all trials are open to the public. So whether a lawyer in your firm or another lawyer in the community is trying a case, make the time to go to the courtroom and watch. Videos of actual and mock trials from renowned trial lawyers are also freely available on You Tube.²⁰

Try Anything You Can. If friends need assistance with traffic tickets, municipal citations, landlord-tenant disputes, or small-claims-court matters, help them. Look for opportunities to do pro bono work, for example through a bar association, a circuit court, or a nonprofit organization. Any chance to examine a witness or make an argument is a good opportunity to develop your skills.

It is becoming increasingly rare for new lawyers to gain trial experience, even as a second chair.

Attend Seminars or a Trial Academy. Litigation seminars can offer great learning value.²¹ The State Bar of Wisconsin and ABOTA annually put on a seminar where experienced lawyers conduct a day-long mock trial. Trial academies, such as the International Association of Defense Counsel Trial Academy, provide hands-on training. Some firms even lend associates to prosecutors’ and public defenders’ offices to get into the courtroom.

Consider Doing Some Criminal Litigation. Municipal prosecutors, assistant district attorneys, and public defenders are all likely to get trial experience. There is an increased need in criminal practice to understand foundational evidentiary issues, because admissibility of evidence is more fervently challenged. The defendant in a criminal case has a right to remain silent and to limit discovery.²² There are no statutory penalties if a criminal defendant refuses to stipulate to the authenticity of a document, present himself or herself for questioning, or disclose his or her theory of defense; cooperation by the defense can even open the door to an ineffective-assistance-of-counsel claim. As a result, criminal litigators learn to examine witnesses on the fly, develop extemporaneous-speaking ability, and get comfortable in the courtroom.²³

Never Stop Being a Student. The path to a great career requires continual self-education. One distinguished trial lawyer reflects:

“[I] read everything I could about trials and trial lawyers. I watched trials whenever I could. Over and over I listened to audiotapes and watched videotapes of great trial lawyers like Racehorse Haynes and Moe Levine. I became a connoisseur of trial advocacy materials – articles, books, audiotapes, videotapes.”²⁴

Making a habit of reading is essential to lifelong education as a trial lawyer. Many published works written by well-known advocates are available, including advice on technique and strategy,²⁵ trial transcripts, and biographies.²⁶ Great lawyers possess an intellectual curiosity that drives them to improve: “The true masters of trial advocacy don’t consider themselves masters at all. They are enthusiastic students of trial advocacy.”²⁷

Have Confidence to Take Cases to Trial

Sooner or later, you will be in position to independently handle cases. To be a trial lawyer, you must possess the courage to recommend and proceed with trial when appropriate. Even an inexperienced lawyer who believes in a case, is well prepared, and is dedicated can make a competent trial presentation and position the case for success:

“Give me a frightened young woman standing with shaking knees before the jury, one who cares to the core for her client, one who will show who she is – honest, afraid, involved, and caring – and I’ll give you a lawyer who will win against the best heads and the quickest wits. … That woman is credible and the jury feels it and trusts her.”²⁸

The following recommendations may help you gain confidence.

Eliminate Uncertainty About Case Strategy With Jury Instructions. Researching and understanding applicable law by drafting jury instructions from the beginning will give you confidence in your preparation through discovery.

“Draft proposed jury instructions at the beginning of every case. … Nothing focuses the mind of a trial lawyer like a set of jury instructions. The jury instructions are ‘the bottom line.’ … They determine what evidence is relevant. They determine what you have to prove to win. They reveal what affirmative defenses can hurt you.”²⁹

Obtaining this focus early in the process should help you position the case well for trial.

Execute an Effective Discovery Plan. “The best preparation [for trial] is thorough pretrial discovery.”³⁰ Make use of written discovery requests, depositions, and investigative tools such as statements to create a favorable pretrial record, fully understand the opposing position, and undermine your opponent’s evidence.³¹ Know what you need to prove, but keep your theory flexible enough to account for uncertain testimony. If you have been thorough in discovery, you will know basically what is going to happen at trial. This should inspire confidence in your analysis and ability to succeed.

Stick to Your Guns During Mediation. Advise your clients appropriately regarding settlement, but resist the temptation to soften your position solely for fear of losing. Instead, channel your angst into a relentless pursuit of detail in your preparation. If you have a client who actually wants to try a case, as long as he or she is making an informed choice, run with it. If your fee is the only obstacle to trying the case, consider modifying or capping it. The experience will be worth a reduced fee.

Conclusion

While we do not claim to be masters of trial advocacy, we count ourselves lucky to have tried cases early in our careers. We hope that more experienced lawyers will encourage their associates to attend trial, and newer lawyers will fight for opportunities to get there. Though trial work is difficult and stressful, if you have the courage to step out in front of a jury, you will realize the pride, confidence, and professional benefit of being a trial lawyer.

Endnotes

¹ Gerry Spence, Win Your Case 3-4 (2005).

² Russ Herman, Courtroom Persuasion xi (2009).

³ Id.

⁴ In using the term “litigator,” we want to call attention to an issue that seems to be more and more accepted in civil practice – litigators with little or no trial experience. Some concerns discussed in this article relate to litigators lacking the experience, willingness, or ability to pursue a matter to its conclusion at trial. That is an unfortunate trend that members of the bar should rally against, rather than acquiesce to.

⁵ Mark Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Court, J. of Empirical Legal Studies, Nov. 2004, 459–60 (“The portion of federal civil cases resolved by trial fell from 11.5% in 1962 to 1.8% in 2002, continuing a long historic decline. More startling was the 60% decline in the absolute number of trials since the mid-1980s. [T]here are comparable declines of trials, both civil and criminal, in the state courts, where the great majority of trials occur.”).

⁶ Id. at 460.

⁷ Kurt Chandler, Courtroom Avenger: The Challenges and Triumphs of Robert Habush 263 (2014).

⁸ Civil tort case filings in Wisconsin declined by roughly 20 percent from 2004 to 2013. See Circuit Court Statistics, available at www.wicourts.gov/publications/statistics/circuit/circuitstats.htm; see also Ruth Simpson, Litigation Implosion, The Verdict, Spring 2015, 46 (discussing the declining level of tort cases in the last three decades).

⁹ Robert Burns, What Will We Lose If the Trial Vanishes?, Northwestern University Faculty Working Papers, 2011, available at scholarlycommons.law.northwestern.edu.

¹⁰ Id.

¹¹ Spence, supra note 1, at 80.

¹² Brandon Gee, As Jury Cases Decline, So Does the Art of Trial Lawyers, The Tennessean, Feb. 5, 2011.

¹³ Galanter, supra note 5, at 526.

¹⁴ Nora Engstrom, Sunlight and Settlement Mills, NYU L. Rev., Oct. 2011, 840. The limited data available also suggest that starting and maintaining lawsuits increases outcomes. Id.

¹⁵ Lawyers and litigants are not exempt from Jerry Seinfeld’s joke that many people at a funeral would rather be “in the casket than giving the eulogy,” in reference to the well-documented fear of public speaking.

¹⁶ Rick Friedman, On Becoming a Trial Lawyer 17 (2008).

¹⁷ An exception to this statement would be medical-malpractice cases, which are often tried.

¹⁸ Friedman, supra note 16, at 17.

¹⁹ Id. at 18.

²⁰ For example, video of the mock trial in which Vincent Bugliosi prosecuted Lee Harvey Oswald, who was represented by Gerry Spence, is available at www.youtube.com/watch?v=1oYHsicxdQg. Many clips are also available from the O.J. Simpson trial.

²¹ Check our companion State Bar PINNACLE^® seminar/webinar, “You Can Do It! Civil Trial Essentials for Young Lawyers,” presented during the 2015 Annual Meeting and Conference, on June 25, 2015, available at www.wisbar.org. The webinar will be replayed on September 23 and October 30, 2015.

²² See Wis. Stat. § 971.23(2m), (8).

²³ The challenges for lawyers transitioning from criminal to civil practice include getting accustomed to the tradition of cooperation on undisputed issues and the level of preparation and detail required to effectively conduct pretrial discovery. Criminal procedure lacks cost-shifting statutes, such as Wis. Stat. section 804.12(3) (expenses on failure to admit), which encourage cooperation in discovery (as well as local rules). Also, criminal practice lacks a statutory incentive to resolve cases before trial when prudent. See Wis. Stat. § 807.01(3) (settlement offers). Along with the broad discovery tools in Wis. Stat. chapter 804, these aspects of civil practice are a change of pace for criminal lawyers.

²⁴ Friedman, supra note 16, at 3.

²⁵ See, for example, the materials cited herein as well as Moe Levine on Advocacy (2009); David Ball & Don Keenan, Reptile (2009); David Ball, David Ball on Damages 3 (2011); and many more. For our recommended reading list, see our outline from our June 25, 2015 PINNACLE seminar.

²⁶ Try Courtroom Cowboy (about Philadelphia’s James Beasley), Courtroom Avenger (on Robert Habush), or v. Goliath (on New York’s David Boies).

²⁷ Rick Friedman & Patrick Malone, Rules of the Road 187 (2010).

²⁸ Spence, supra note 1, at 10, 31.

²⁹ Friedman & Malone, supra note 27, at 32-35.

³⁰ Robert L. Habush, Art of Advocacy: Cross Examination of Non-Medical Experts 1-16 (2014).

³¹ For guidance, see Ian Miltz, Art of Advocacy: Discovery (1982).