By Jill D. Schmid, Ph.D.
In an article called “The Case of the Vanishing Trial Lawyer,” published in the Boston Globe,a veteran litigator, Edward McCarthy, makes a compelling case for the need for associates to gain more trial experience, while acknowledging that their ability to do so is slim since the number of cases going to trial has dwindled so significantly. “Today,” he writes, “Most trial lawyers can’t learn by doing,” and he goes on to discuss how most cases settle or are handled in arbitration. He writes that “The result is that part of the legal profession’s apprentice system is disappearing.” McCarthy references that the judges of the Massachusetts Superior Court recognized the problem and asked law firms to “let less experience lawyers do something – argue a motion, examine a witness – at trial. ‘Without the chance to speak in a courtroom…future generations of litigators will be less equipped to represent their clients effectively.’”
Working with trial lawyers across the country, we’ve had discussions regarding each issue – the fact that there are fewer jury trials (which is sometimes used as the justification for why they don’t need a litigation consultant, but that’s for a different blog) and the “poor trial training” and/or the difficulty with getting associates effective training, while still meeting the client and case needs. Working with trial lawyers across the country we’ve also seen some fantastic ways that firms are addressing this need. Here are a few to consider:
Use jury research as a training field: One firm that we’ve worked with for years uses this approach with great success. Since we’ve worked with them for so long, I can remember mock trials years ago where a first-year associate was a very junior member of one of the teams, just learning the ropes; now that first year is a successful partner, managing his own team of associates, pitting them against each other in various mock trial research projects. I believe this system is effective for a few reasons:
1. It’s a real mock trial exercise – it’s conducted outside of the firm, with mock jurors. Having to present to real people and then watch as these people deliberate their case is one of the best ways to learn.
2. The associates do everything – they write the presentation, pick the witness clips, create demonstratives, and whatever else needs to be done to get the plaintiff and defense cases ready for the mock trial. This is all done with a lead attorney as a guide, but the associates are given a lot of space to brainstorm ideas and be creative. The resulting presentations are some of the best I’ve ever seen – and not just from associates, but from veteran litigators.
3. It’s a team effort – on the team is a mixture of more and less experienced associates, and a lead partner. Each person is learning from the person with more experience. Each project is a chance to move up while passing down information to the newest member of the team. A unique benefit is it also creates a camaraderie within the larger firm. I have never seen ego be a problem as it’s never been about showing someone else how great he or she is, but about a team win.
From a research standpoint, this approach has not hurt the validity or usefulness of the research at all. This is because the critical components of what makes research successful and helpful are still present – namely that both sides are presenting their strongest cases possible, both sides are very prepared, and both sides understand that the goal is to learn as much as they can about how jurors process, make sense of, and use the information presented to reach a decision. The parity between the teams means that there is not a concern that the veteran litigator and first chair is going up against a less experienced litigator, or one that the firm simply found to “play” opposing counsel.
Hold in-house training sessions: I’ve seen several examples of law firms holding in-house training sessions where associates participate in hands-on / roll-playing exercises designed to simulate various trial activities. Given a case fact pattern, associates first hear a presentation on the particular activity, then plan their strategy, and end by participating in a roll-playing activity. The sessions cover everything from pre-trial motions, to preparing witnesses, to jury selection, to presenting their closing argument. The benefit of such an approach is that the associates are not simply hearing about or watching someone else do a particular activity (i.e., jury selection). As we say for witness preparation, nothing beats actual practice, and if your associates are not getting practice in a courtroom, then they can get practice in your conference rooms.
Hire outside consultants to run a trial skills course: Getting an outside consulting firm involved can be beneficial in a number of ways. First, it means that partner time is not being spent training associates, freeing them up to do what they do – bill. Second, outside consultants will have a different relationship with the associates then more senior associates and partners. A different voice in the room and a different perspective is invaluable. Third, understanding juror decision-making and the implementation of effective communication strategies is what litigation consultants do day in and day out. Our firm offers a comprehensive skills course that covers everything from working with witnesses to preparing and conducting a closing, or we offer skill specific courses, e.g., jury selection. We’ve conducted a session as a supplement to the firm’s broader training program (like those described above) and we’ve conducted multiple sessions as part of an associate or firm retreat. If you’re interested in finding out how we can help fill the experience gap, email [email protected] or [email protected].