Is the Golden Age of Trial Attorneys Over?

, The Legal Intelligencer

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In his office, McLaughlin said, he's "trying to find roles for [associates] to fill; it's not like the old days. Most of the trials now are with big complex cases, and that's not a good place for a new associate to cut their teeth."

Lawrence R. Cohan, an attorney at Anapol Schwartz and president-elect of the Philadelphia Trial Lawyers Association, said that while more settlements may be a good thing in that it indicates that defendants are willing to compensate deserving plaintiffs, he noted that it can be detrimental to newer attorneys.

"Young lawyers do have a harder time getting trial experience," Cohan said.

He added, "I do believe that jury trials are fundamental and still the best way for a victim to be compensated appropriately."

But young lawyers aren't the only ones feeling the sting of reduced trial time. According to Kline, established litigators are exhibiting the adverse symptoms of being out of the courtroom for extended periods.

"Even at the highest levels when you go from state to state, there are fewer lawyers who have very high credentials; that is to say many multimillion-dollar jury verdicts. That's not a coincidence, that has to do with a diminished opportunity to obtain jury verdicts," Kline said.

McLaughlin opined that many lawyers don't want the pressure or risk of losing a case that comes with trial, and in some cases defendants capitalize off of that aversion.

"A lot of insurance companies want to play chicken with" plaintiffs attorneys, McLaughlin said. "They say, 'Can your client really take the risk and possibly not get this money?' There are a lot of aggressive defense tactics in play, not that that's wrong, but that's the reality of the situation."

In terms of attorneys keeping their skills sharp, Larry Coben of Anapol Schwartz said continuing legal education is helpful, but nothing compares to learning through going to court.

"It can't be duplicated by mock trials. It's not like riding a bicycle," Coben said. "The skills change, and the needs change in effectively trying a case."

What's being said

  • Publicus

    More cases are being settled because it is not economically efficient to try them, especially the so-called "smaller cases" like fender-benders and slip-and-falls. Liability insurers that employ the computer software evaluation programs have brought that on. Additionally, discovery abuses by defense firms to maximize billable hours for partner draws have made insurers more receptive to settling before a massive discovery campaign rather than afterwards. Medical malpractice cases may be ultimately sacrificed when the public wants cheaper health insurance, especially in light of the massive premium increases rolling out with implementation of the ACA. A smaller trial bar may not be all that bad, especially if it results in eliminating those cases that would never have even been filed save for the glut of underemployed and unemployed attorneys who will take ANYTHING and hope to squeeze some nuisance-value money out of it.

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