Editor's Note: The following is excerpted from "Honesty Is The Best Policy: It's Time to Discuss Lack of Jury Trial Experience", as originally published in the Georgetown Journal of Legal Ethics, Vol. XXIII, No. 1, Winter 2010, and as edited and reprinted in the Spring 2011 and Summer 2011 issues of Voir Dire, the quarterly publication of the American Board of Trial Advocates (ABOTA).
KNOWING YOUR OPTIONS GUARANTEES THE BEST RESULT. Lawyers must have the ability to objectively advise their clients of all options to assure that the client makes a valid and informed decision. When the lawyer lacks civil jury trial experience, missing is the ability to accurately assess all options and even more importantly, to know whether the options under consideration are being either over-valued or under-valued. All lawyers can easily explain the distinctions between an arbitration and a mediation, or the advantages of either over a civil jury trial, but whether the lawyer is capable of understanding the merits of the case from a trial perspective, thus giving the client the necessary full assessment of the case, is critically important - before the client can begin to make an informed decision as to how they wish to proceed with their case.
KNOW THE DIFFERENCE BETWEEN A "LITIGATOR" AND A "TRIAL LAWYER". The days of the trial lawyer are essentially gone. Even the term "trial lawyer" has fallen out of favor within the profession itself, the vast majority of lawyers now simply referring to themselves as "litigators". Part of the reason for this is political, the other practical. In today's society, being called a "trial lawyer" is often, in the voice of the media, a derogatory label - hence the refashioned term of "litigator". There is a real and important distinction in the two terms. Litigators typically are very effective in the paper or discovery phase of a case, spending their time exchanging paper discovery and engaging in motion practice. Few litigators have actual trial experience. A litigators lack of actual trial experience matters significantly, in every civil case, and regardless of whether or not the case is likely to be actually tried. Every client should inquire, and every lawyer should reveal, his or her actual trial experience. From the practical standpoint, civil jury trials today are a vanishing event, the result of both cost and uncertainty of the final result. Statistically, the majority of cases will settle. The critical question is whether the settlement is a fair disposition of the claim or is the settlement a tortured abandonment of the case for less than its full dollar value.
KNOW WHY THE DIFFERENCE MATTERS. The significant reduction in the number of civil jury trials has had a profound impact on lawyers as well as significantly greater percentages of the bar, lacking any jury trial experience, become more dependent upon alternative forms of dispute resolution (ADR) such as arbitration or mediation. An entire new generation of "litigators" has been created for whom a civil jury trial is merely a theoretical concept that they studied while in law school. A litigators lack of civil jury trial experience can have a significantly negative effect on the ability to act in the clients best interest. When a civil jury trial is no longer viewed as a viable alternative, abandoning the claim through settlement becomes the only remaining option.
RECOGNIZE THAT ACTUAL CIVIL TRIAL EXPERIENCE SHAPES EVERY CASE THAT LAWYER HANDLES.
a. The Effect Upon The Discovery Process "Discovery" is the backbone of any civil case. The objective of discovery is to allow both sides of the case to have a clear understanding of the facts upon which the case is based, and to allow the opportunity to accurately assess the strengths and weaknesses of each sides position. Lawyers need to know not only what evidence they will need to prove their case, they need to know whether that evidence will be even admissible at time of trial. Trial lawyers have been there and done that. Trial lawyers do not run rampant in discovery. Discovery for a trial lawyer is not about "turning over every stone", a type of practice that is expensive, time consuming, and most importantly unfocused. Discovery for a trial lawyer is about knowing the right stones to turn over. Critically, what is accomplished (or sometimes not accomplished) in discovery will ultimately determine whether a case can be successfully tried, and whether the lawyer can recover for the client the full value of the case. Litigators who sit in the office and grind out paper are wonderful at processing the case. But therein lies the problem. By not having stood in the well of the courtroom and by not having tried cases before a jury, does that litigator actually know what discovery is really necessary, what is actually admissible under our rules of evidence, and most importantly, what is effective with the jury?
b. The Effect Upon The Ability To Settle The Case Few clients have ever walked into a law office and said from the outset they seek only a jury's verdict in their case. To the contrary, most if not all clients express the desire to avoid the courthouse, to settle the case, and to settle it as soon as possible. With these objectives, it is all too easy for the client to overlook the value of the lawyers actual trial experience. A lawyers lack of actual civil jury trial experience can disadvantage the clients case in three distinct ways. Ask three questions. First, does the lawyer have the ability to make an accurate jury-value assessment of the case? Second, does the lawyer have the ability to objectively assess the settlement offer made in the case? And finally, does the lawyer have the ability to negotiate the best possible settlement for the client?
1. The ability to make an accurate jury-value assessment of the case. The ability to make an accurate jury-value assessment of the case requires the lawyer to both evaluate and predict a civil jury's likely reaction to the witnesses, evidence and arguments of counsel. This sometimes referred to as the "jury value" of a case. Jury value is not the dollar value of the case. Jury value is the weight that the lawyer believes a civil jury will ultimately give to the testimony and evidence of the case, when presented at time of trial. The lawyers objective assessment of the jury value of the case is critical in selecting how the case should ultimately be concluded. It is more often than not dispositive of the final decision as to whether the case should be settled or tried to verdict.
2. The ability to objectively assess the settlement offer made in the case. Without a proven history of trial experience, a litigator can have difficulty objectively assessing a settlement offer because of the lack of civil trial experience, often times evaluating the offer by simply weighing the advantages of settlement against the risks of trial. This can occur as a result of the litigator consciously concluding that their lack of trial experience decreases the chances for success at trial, and subconsciously magnifying the risk and uncertainties of trial because of their own fear of the unknown. More importantly, from an ethical point of view, should this occur, there is a breach of the fiduciary duty which all lawyers owe to their clients. A lawyer is an agent of his or her client. Agents (lawyers) are fiduciaries for their principals (clients). By classic definition, once the independent judgment of counsel is compromised by the agents own self interest on a material issue, a breach of the fiduciary duty has occurred if the compromise is not fully disclosed and consented to by the client. If the lawyer does not have the capability to evaluate the settlement value of the case, the client deserves to know. 3. The ability to negotiate the best possible settlement for the client. Let no one ever downplay the strength of the threat of trying a case. Counsel's ability to effectively try the case to a successful conclusion in the event settlement negotiations break down significantly strengthens that parties bargaining position. A lawyer without real civil trial jury experience leaves the client with only one option, take the offer, settle the case, and go home.
ASSESSING CREDIBILITY. Abraham Lincoln is often quoted for having said, "A lawyers time and advice are his stock in trade." These words were not meant to be taken lightly. A lawyers primary responsibility is to advise their client and the client then needs some way to decide whether or not to follow that advice. Wood-paneled offices at prestigious addresses and expensive cars to arrive at the courthouse in are designed to impress the client. Fancy advertising campaigns are designed to do the same thing. Neither the paneling, the fancy car or the advertising campaign reveal the true legal experience and more often than not obscure the lawyers true lack of trial experience. Look for the lawyers trial credentials. Look into the lawyers reputation within the bar where he or she practices. Look for the objective assessment of the lawyers abilities by independent third parties. Inquire into the lawyers actual civil jury trial experience. All of this information will assist you in assessing both the credibility of the lawyer providing the advice and can potentially trigger other questions to allow the client to explore the nature and extent of the information being disclosed. Without such a disclosure, the client is unable to accurately assess either the reliability of the advice being given or the credibility of the lawyer giving that advice.
CONCLUSION. Lawyers are hired with the clients expectation that they can lead their clients through the strange and at times hostile land of the law. Civil jury trials are a part of that landscape. Unfortunately, the frequency of civil jury trials continues to diminish resulting in most lawyers today having little or no civil jury trial experience. Clients not surprisingly assume that all lawyers are the same and all have the necessary experience. They do not. Just as you would not ask the lawyer who handled your real estate closing to represent you in a civil jury trial, always inquire into your civil trial lawyers actual courtroom experience to assure that the lawyer you ultimately select to represent you, brings to your case the level of expertise necessary to assure that under the facts of your case, you get the best result possible.
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