Is the Golden Age of Trial Attorneys Over?

, The Legal Intelligencer

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Analysis

With a greater number of cases being resolved outside of court, some attorneys say that there are fewer opportunities for civil trial lawyers to achieve their full potential.

Attorneys have expressed concerns that the reduced number of personal injury, medical malpractice and other cases going to trial has impacted trial attorneys by either dulling the skills of experienced litigators or by not providing enough courtroom experience for newer ones.

"I see this as a disturbing trend," said Dennis R. Suplee of Philadelphia-based Schnader Harrison Segal & Lewis. "Because people haven't tried cases in recent memory or they haven't had a chance to start, they get gun-shy about going into a courtroom and there's more pressure to settle a case."

While settling cases through mediation or alternative dispute resolution has its place, Suplee said, the idea of a trial should not be immediately cast to the side once settlement is brought up.

"I don't think that resolving a dispute through a trial should be viewed as a failure of the system. We all pay lip service to the role of the trial in the American jury system, but in reality the trial is being used less and less as a means of resolving disputes between people."

Thomas R. Kline of Kline & Specter said that the chances for newer attorneys to gain firsthand trial experience have decreased.

"There was once a day when young lawyers cut their teeth on smaller cases. Today, stats show that in Pennsylvania more cases are settled and fewer cases are tried. That by definition has a significant impact on developmental skills for lawyers who are making their way up the ranks. There are fewer opportunities for being second chair, let alone first chair. That results in a less robust trial bar at the end of the day."

Kline added that there is a definite impetus by the state's courts to push cases toward mediation and settlement.

Slade McLaughlin of McLaughlin & Lauricella in Philadelphia also said that trying smaller cases is a crucial learning experience for young attorneys, but they are currently in short supply.

Many cases that go to trial, McLaughlin said, involve complex litigation, something that even a five-year associate may have difficulty with.

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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