The Vanishing Trial

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In a forum sponsored by the State Bar of Michigan, President Thomas Rombach discussed a list of issues that are facing the future of legal service.  He included items such as attorney licensing reforms, pro se litigation, and electronic filing, among others.

Sheldon J. Stark, a distinguished expert in alternative dispute resolution and a mediation and advanced mediation trainer at the Institute of Continuing Legal Education, was disappointed to see that “The Vanishing American Trial” did not make the list.  Stark served as a trial lawyer for the first 25 years of his career before transitioning to mediation and arbitration in the mid 1980s.

Stark’s argument is the already low percentage of cases that proceed to trial is continuing to decrease. In Michigan only 1.2% of cases go to trial, meaning that many trial attorneys and litigators may see very little time in front of a judge. As this number continues to decline, there will be implications for the bar and for the public, according to Stark.
With fewer trials, there will be less people with the experience necessary to evaluate cases for settlements. Young lawyers with no trial experience will be hesitant to push a case forward without a strong model for evaluating the risks and benefits.
The lower likelihood of trial may decrease the attorney’s role in the evaluation process.  Attorneys typically have a strong influence on their client’s intention to push the case forward or settle. But if clients do not feel there are options to settlement, the attorney’s necessity wanes.
Lacking trial experience inhibits an attorney’s ability to make strong positions in settlement negotiations.  Poor positions have a negative impact on the resulting solutions.  A strong knowledge of potential trial outcomes, however, strengthens an attorney’s ability to create an effective position.
Similarly, trial experience helps attorney’s to give strong advice to clients.  Stark notes that as a trial attorney he investigated far more cases than he accepted for litigation, a ratio of approximately 75:1.  He limited the cases he accepted to those that he felt had merit that would hold up well in court. This experience of evaluating the risk of going to trial is necessary when advising clients on how to proceed.
Most directly, trial experience is necessary to be a strong litigator.  Even if a majority of classes settle, an attorney still needs the skills necessary to go to trial if the situation arises. A lack of experience leads to weak performance in litigation.  The facts generally dictate the success of a case, but in close cases, the attorneys make the difference.
The dissenting opinion, however, is that this lack of trial frequency is a strong point, according to attorney Richard Figura. In his work as a mediator, clients save themselves a great deal of trouble by settling their case in mediation, rather than waiting for the courts to decide.

Charlyn Pelter