Is the Golden Age of Trial Attorneys Over?

, The Legal Intelligencer

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In order for trial lawyers to be successful, according to Coben, consistent courtroom experience is essential.

"From a financial standpoint, if a person who is a litigator gets a reputation for going to mediation, people will look at him and say, 'When's the last time you went to trial in a case?' If the reputation is one where you try cases, you are much more successful. If your reputation is that you haven't tried in eight or 10 years, your opponents don't have the same concern for facing you as an adversary."

Coben noted, however, that in some cases clients are the ones who want to avoid the risk of going to trial because they are in need of prompt settlement.

Stewart J. Eisenberg of Philadelphia-based Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck said the simple economics of litigation also prevents many cases from going to trial.

"It's very expensive to try a case, more so today than ever before. Financing a case through trial has always been an issue, but costs today are definitely higher," Eisenberg said.

The trial lawyer, however, is in no danger of vanishing, according to Eisenberg. "Trial attorneys are needed and desired in personal injury and complex matters," he said.

Coben also said that the need for the trial attorney will be ever-present in the most serious matters.

"I think that there's always going to be a role for litigators in the civil practice, relegated to cases that are much more substantial and valuable. The less substantial ones will be resolved without trials. With cases involving catastrophic injuries, huge financial loss, trial lawyers will always be there," Coben said.

Suplee, however, posited that the current trend indicates a shift in the way civil cases are being handled across the country.

"We're moving closer to the English system where you have barristers who go to court and you have solicitors who prepare them," Suplee said. "The barristers tend to be a comparatively small portion of the population. I think, de facto, that's what's happening in the U.S."

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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