Thursday, August 26, 2010

How many trials has your lawyer tried in the past year?

Monday, I resumed teaching (part-time) at the University of South Carolina School of Law since 2003 when I switched to the Charleston School of Law. This brings to mind one of my pet issues: the vanishing trial lawyer.
What is the truth? It’s common knowledge in the bar and judiciary that jury trials are going the way of the dinosaur. I struck a jury in Orangeburg recently. The judge’s clerk told me that they’d not tried a civil trial since last summer, seven months earlier. Last year one federal judge in South Carolina mentioned that he’d begun his first civil trial of the year - in November! Truthfully speaking, most cases have always been settled out of court. However, trials are so rare these days that young lawyers have no realistic opportunity to learn. I speculate that one or two in a hundred lawyers try jury trials to completion in a given year. The percentage may be a bit higher in family court or workers' compensation litigation, but that's another guess.
"Litigators" now rule the legal battlefield. The difference between a litigator and a trial lawyer is summed up in one word - trial. The King of Torts Joe Jamail in a recent ABA Journal commented on settlement conferences called mediations:
“They’ve invented this new term, litigator. What the #!*@ is a litigator? I’m a trial lawyer . . . . There are some lawyers who do nothing but this mediation bull^!*#. Do you know what the root of mediation is? Mediocrity!”
The reason jury trials are becoming scarce and why (I think) trial errors are becoming more frequent is a lack of training. Lawyers who don’t know how to try cases are afraid of the courtroom. So they settle. Not the type reputation a client wants for her lawyer. It's like a football team with no long-yardage threat.
Trial advocacy, the class I'm teaching, is no longer required in this state. That's a bad thing. After becoming a member of the Bar, there's no requirement that South Carolina lawyers ever complete a trial advocacy course. Nor is a new attorney required to attend a single trial-related continuing legal education seminar in his or her entire career. Between the LSAT and their retirement parties, South Carolina lawyers can go entire careers without taking trial-related legal courses.
Ask your lawyer how many jury trials or family court trials he or she has tried to completion in the past few years. You're entitled to know.