This article by ACEDS on the recent sanctions levied against a major law firm in a patent trial which they won for their client raises numerous issues with the practice of law that need to change. The article refers to “structural woes,” of the legal system. Anyone who practices law can attest to the length of time it usually takes to bring a case to trial, and the costs of litigating a high stakes or even a low stakes case.
If the case is in state court and requires a trial of more than one week, getting the trial scheduled around the lawyers and clients schedules will likely require a herculean effort by itself, and if it is set in a rural county with not so many terms of court and one that almost never has two judges trying cases, good luck to you. Federal court cases with their court-produced scheduling orders tend to keep cases on track, and the fact that those cases are assigned to one judge who usually has a whole month term, the length of the trial as long as it is not more than two weeks should not be cause for delay.
Just recently, I was told by insurance company adjuster that because the opposing party could also afford to take the case to trial, it was very difficult to settle the case. Obviously this person has become accustomed to having time on his side. This comment also suggests reliance on the standard knee-jerk reaction of using defend and delay tactics to wear out the other party’s resources, and resolve. In reviewing comments on a patent case just this weekend, the discussion was centered primarily on how to navigate the district court’s findings of facts to allow de novo review. My comment was that de novo review needs to be curtailed, not expanded. With de novo review, time is on the side of delayed decisions with litigants and their counsel betting on a fresh look by a new set of judges.
The reality is we have an “access to justice” issue in civil business litigation, and it is not limited to people “of low income and modest means.”
The ACEDS article cited above suggests again for ump-teenth time, this time quoting a retired federal magistrate judge stating, “we don’t have a trial bar anymore.” This is the primary “structural woe,” referenced in the article and the one that needs to be discussed and addressed within the profession. Another good article I read recently by trial consultant Ken Lopez also acknowledges the difficulty in training new trial lawyers. I understand this all to well having spent the first 12+ years of my practice in an AmLaw 200 firm and in a mid-sized local law firm. Young lawyers are taught to litigate and not to take cases to trial. The younger lawyers that are taking a lot of cases to trial are mostly trying smaller cases. As stated in the ACEDS article, it is a Catch-22.
Just because cases take years to resolve does not mean that we should accept that and not seek to change it, nor should we as lawyers allow the time it takes to resolve cases get any longer. Lopez in his “9 Things” article linked immediately above hits on another buzz word in the profession: early case assessment. The status quo many times has become get the case filed and see what will happen. In my experience, cases are not settling until just before trial, if then.
To address this situation, I am challenging myself and also challenging all of you as my colleagues to commit to getting cases ready for trial within 12 months of taking the case. I realize this is an ambitious goal, so if it ends up being 15 months or 18 months, then how much better off are we and our clients than we are under the present system for which we have become “accustomed”?
This pledge I am making also requires a commitment from the clients, namely to accept that they are in litigation and to commit the resources to an appropriate early case assessment, and a plan for trial. This commitment also requires us to identify the issues in the case early and get the discovery necessary to make the necessary proof at trial.
What I am suggesting here is that the commitment to become a member of the trial bar is one that has to be made by individual lawyers. Those in large law firms that wish to make this commitment, your firms will assist you in this by sending you to NITA and other trial schools, but this is not a problem to be solved by a bar association, or a law firm, although they can certainly help in keeping the discussion alive and encouraging lawyers to commit to getting trial experience.
One way firms and bar associations can assist in this matter is to identify the skill sets that need to be developed to distinguish a trial lawyer from a litigator, and provide CLE’s or other pro bono opportunities for these skills to be developed. A list of the skills for trial lawyers would include at least the following:
Litigation Skills:
1. Drafting Pleadings, consulting regarding filing suit
2. Written Discovery, Document Production, subpoenas, etc.
3. Depositions, expert and lay witnesses
4. Motions Practice, discovery and dispositive
Trial Skills:
5. Voir Dire
6. Jury Selection
7. Opening Statements
8. Direct Examinations
9. Directed Verdict Motions
10. Cross Examinations
11. Closing Arguments
12. Post Trial Motions
13. Appeals
The vast majority of young lawyers spend the vast majority of their careers in categories 1 to 4 above.
Another topic that was addressed in the ACEDS article is the work of Stephen Susman to create templates for trial by agreement. The point is, thought should be put toward the trial as an event that is going to happen and not an event that might happen when we mutually agree to quit discovery and seeking continuances. If we as lawyers all make a concerted effort to do this, our voices at the jury roster meetings advising we are, “Ready for Trial Your Honor,” will be music to the judge’s ears!
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