VIDEO: Courtroom experience proves elusive for many young attorneys

By David Baugher

Over half a century of legal work, Luther J. Battiste III, a founding shareholder with South Carolina firm Johnson Toal & Battiste, has come to appreciate the importance of communicating effectively to the most important — and most unpredictable — group in any trial.

“I’ve been in cases where everyone in the courtroom thought I’d won the case,” he quipped, “except for the jury.”

But win or lose, there is concern today that younger attorneys might not be getting the same opportunity that seasoned trial lawyers like Battiste had to hone their talents in front of a judge and jurors. The rise of alternative dispute resolution, the high cost of litigation and the increasing prevalence of settlements have left the courtroom tension of a trial as more a mainstay of television dramas than a reality of the American judicial system.

As a result, some observers worry that up-and-coming practitioners might lack the opportunity to build what were once considered basic abilities related to the practice of law.

“There are a lot of ways to develop a skill set in order to be a good trial lawyer,” Battiste said, “but the best way to develop a skill set is to actually be able to try a case in some capacity.”

Trial by discovery

Of course, Battiste is quick to point out that mediation and arbitration are not bad things. The availability of new venues that allow clients to resolve differences in a timely manner without overburdening the court system has been a boon in many ways.

Still, the consequential effect is becoming obvious. He noted that the American Board of Trial Advocates once mandated that members have tried at least 20 jury trials. Today, the requirement has been reduced by half, he said, and that finding attorneys who have even that much courtroom experience has become a challenge.

“I don’t think there is an obvious solution to this problem,” said Battiste, who served as president of the organization in 2020. “It’s just a change in the system.”

It is a change that Tom Comerford of Comerford Chilson & Moser in Winston-Salem sees reflected even in the questions that clients ask. Frequently, one of those is, “Will the case settle?”

His answer is always the same.

“What I tell them is that we will prepare as if every case will go to trial, and we’ll only take cases that we’re willing, ready and able to take to trial,” said Comerford, a plaintiff’s attorney with five decades of experience. “If we approach it that way, then in all likelihood — the cases that ought to settled — there will be an opportunity to settle those cases.”

However, he isn’t convinced that every attorney is following that model. He said that lawyers might frequently file cases without any intention that they will ever see a jury. Instead, the objective from the beginning is settlement — even if bigger awards might be found if the cases were left to a courtroom.

“I think a mindset develops among some lawyers that the goal is to get the maximum dollar that the defendant insurance company or corporation or whoever is on the other side of the case is willing to pay rather than get what the case is worth,” he explained.

The question of worth itself also can present a problem. Comerford worries whether an attorney who rarely sees a jury can be the best judge of what one might do with a given matter.

“A lot of people don’t know what a case is worth because they haven’t tried a lot of cases and had juries come back to be personally informed about what case values are,” he noted.

Perhaps worse, the value of a case might be sharply distorted by the rising cost of getting it to court in the first place, an expensive and time-consuming process awash in a quantity of depositions that was largely unheard of in the 1970s or 1980s. The result is that trials that used to be handled in days can drag on for weeks.

Comerford favors the use of focus groups to streamline attorneys’ presentations to juries as well as agreements between the parties not to drown the matter in a flood of redundant expert witnesses who add little substance to the proceedings.

“Discovery is what has set the civil trial practice back,” he said. “We have cases where there are 60 depositions taken.”

Risk tolerance, runaway verdicts

In addition to the cost of discovery, there also is the fear of trial. Settlements might offer an unhappy compromise to both sides, but they provide a comfortingly stable alternative to the unpredictable universe of trial practice.

Mark Phillips, a regent with the American College of Trial Lawyers, said the prospect of “runaway verdicts” can strike fear in the hearts of lawyers, particularly in a world where jurors’ attitudes toward corporations might have shifted.

The upshot is that the stakes have increased, while the appetite for risk has dropped.

“Juror dynamics and demographics have changed and so have verdict ranges,” explained Phillips, a Charleston attorney with Nelson Mullins who has tried cases to verdict in 11 states. “Surprise verdicts are not unheard of, and that probably has something to do with [the drop in trials].”

David S. Cobb, a Charleston insurance defense lawyer with Turner Padget, agreed, noting that winning cases he thought he’d lost or losing those he believed he’d won isn’t unusual.

“Until you get that knock on the door and the jury has a verdict, you really don’t know,” he said.

However, the same uncertainty that might discourage corporate clients from a trial also might deter plaintiffs. Cobb said jurors in some localities have become less friendly to soft-tissue claims with little or no damages or injuries involving only chiropractic treatment.

“A lot of those were getting tried 15 to 20 years ago, whereas nowadays, those cases rarely get filed,” he said.

He is concerned that young lawyers aren’t getting to see how the rules of evidence are being used in trial.

“People don’t have the opportunities to do those things and learn either from doing it correctly or from your opponent doing it better,” Cobb said.

Still, neither attorney feels that alternative dispute resolution and settlements are bad things.

“I just think it changes the art of advocacy away from arguing a case to a jury,” Phillips said.

Building a comfort level

At the same time, the issue is gaining attention. Laura Meherg of the Wicker Park Group, a North Carolina-based enterprise that conducts research from clients of large firms, indicates that general counsels want to work with experienced trial attorneys in the courtroom.

“Every firm is recognizing that, typically, their lawyers are not getting as much trial experience as they once did,” she said.

Meanwhile, organizations like the American College of Trial Lawyers are doing what they can to fill any potential training gap. Phillips’ group just finished a trial skills boot camp with more than 80 attendees learning from fellows and federal judges about everything from opening statements to cross-examinations to closing arguments.

Likewise, Battiste said that the American Board of Trial Advocates holds an annual national trial college.

“By providing those educational opportunities, we train lawyers to give them a comfort level about trying cases,” he said.

There are other ways to gain experience as well. Battiste recommends working in the public defender’s or prosecutor’s office as one avenue to trial time given that the world of criminal law hasn’t reduced its reliance on juries.

He even recalled gaining valuable experience trying a death penalty case after being appointed to the matter as a young attorney. Whether civil or criminal, he said, trial work can build organizational skills, improve analytical abilities and, at its most basic level, foster a better comprehension of how to effectively interact with those who decide cases.

“When you have a jury, you have a collection of personalities,” Battiste said. “You have to try to understand how to communicate to those personalities in a way that is not offensive and a way that is persuasive.”

Meherg suggested pro bono work as another option. She also said that law firms themselves are trying to be increasingly intentional about professional development, including as it relates to trial practice. That can help in keeping good attorneys, which is an important challenge in itself.

“The retention issue in hiring and keeping up with client demand is equally if not more so a problem for law firms today,” she said.

Cobb said that the most obvious solution might be the most effective. Young lawyers who aren’t in court can simply take a gander at those who are.

“If you know a trial that’s happening, just go and sit in the courtroom for a day or two and watch, particularly if it is an older group of lawyers trying the case,” he said.