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.


  1. Yes it is extremely helpful if your attorney has real trial experience before you retain him or her.

  2. New lawyers face many problems when they starts the practice. i liked your story. I am scott M. Anderson and my office is Detroit Lawyer