Washington Lawyer - October 2019 - 28

TAKING THE STAND

"Taking the Stand" appears periodically in Washington
Lawyer as a forum for D.C. Bar members to address issues
of importance to them and that would be of interest to
others. The opinions expressed are the author's own.
For submissions, email editorial@dcbar.org.

A CALL TO ACTION
for More Junior Trial Lawyers
By Lloyd Liu

wight Murray, a distinguished trial attorney and
a partner at Stein Mitchell Beato & Missner LLP,
recalls the saying, "Litigators look under every rock.
Trial lawyers know what rock to look under." While the
optimal balance realistically lies somewhere in between,
there is an undeniable truth to the adage, and that's
a reason to focus on building trial experience.
The legal profession has been talking about the "vanishing jury trial" for at
least the last 20 years. One implication of having fewer jury trials is fewer
experienced trial attorneys. So, what's a good solution? Pro bono opportunities and government experience continue to be mainstays for junior attorneys
to develop trial experience, but courts may be able to do more to spark
growth in the private sector.
Since 2000, the annual number of federal civil and criminal jury trials has
dropped by more than 53 percent, despite the fact that the number of civil and
criminal cases filed annually actually has increased 7.7 percent, according to
data collected by the Administrative Office of the United States Courts.1
In 2018 the Superior Court of the District of Columbia disposed of more than
10,000 civil actions. However, only 117 civil actions were resolved by trial (jury
and non-jury), just slightly over 1 percent of all cases disposed.2 Similarly, in
2017 only 111 civil cases went to trial out of the 9,300 civil action dispositions
that year.
Steve Susman of Susman Godfrey LLP suspects that a lack of experienced trial
counsel is one cause for the decline in jury trials.3 Senior Judge Robert Lasnik of
the U.S. District Court for the Western District of Washington suspects the same
with respect to civil trials, citing a diminished bar that is less comfortable trying
jury cases.4
If so, that is a reason to take more deliberate action in developing opportunities for junior attorneys to gain trial experience. Setting aside the question
of whether diminishing jury trials is a good thing, our system, so long as it
chooses to keep trials as its ultimate backbone, should have advocates who
are competent to take a client through trial. Trial experience informs all
aspects of litigation.
To the extent that a lack of experienced trial lawyers results in fewer trials, then
it is an issue we should try to address. There is an asymmetry of information in
the attorney-client relationship, so clients rely on lawyers to evaluate the risks
of going to trial. Building a deeper trial bar would hopefully lead to better
informed advice and mitigate an aversion to trial due to counsel's inexperience.
28 WASHINGTON LAWYER

OCTOBER 2019

Large law firms face headwinds that make it more difficult for junior attorneys
to get in-court experience: mainly aversion to risk and client pressure. These
factors compound the dearth of trial opportunities for junior lawyers.
The judiciary may be in the best position to make an immediate impact. Judges,
of course, are able to define their own procedures. In that vein, a number of
federal judges have led the charge on developing opportunities for newer
attorneys. They have adopted various incentives to encourage young associates
to argue or try cases.5 In collaboration with the Federal Bar Association and
others, Next Generation Lawyers has collected standing orders of judges who
are helping to develop trial opportunities for junior attorneys.6 Some judges,
such as U.S. District Court Judge Denise Casper of the District of Massachusetts,
have adopted the following policy or something similar to it:
Accordingly, the undersigned judge, as a matter of policy, strongly encourages the participation of relatively inexperienced attorneys in all court
proceedings including but not limited to initial scheduling conferences,
status conferences, hearings on discovery motions and dispositive
motions, and examination of witnesses at trial.7
These judges usually have a few caveats, such as reminders that junior attorneys
are still held to the highest professional standards, that they must have
authority commensurate with the proceedings, and that more experienced
attorneys should be on deck to support a more junior attorney.
Other judges have deployed creative, concrete incentives such as:

* Granting oral argument if a junior lawyer will argue the motion or issue.

As reflected in a standing order issued by Judge Leigh Martin May of the
Northern District of Georgia:

Washington Lawyer - October 2019

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