Making Buggywhips

I increasingly get the feeling that the ability to try jury cases anymore is about as valuable as knowing how to make buggywhips. It is rapidly becoming an obsolete and useless skill.

I can’t believe I’m the only one who got into law with the idea that one day I’d be able to stand in front of juries to make sure that a client’s rights and interests were protected. I wanted to be the lawyer who caused Henry Fonda to hold out and to turn around eleven others, making sure an innocent defendant was not convicted. I wanted to be, somehow, like Gregory Peck in To Kill A Mockingbird, standing up for what was right, even though it was unpopular. I wanted to assure that an injured person was rightfully compensated. For me at least, that was the picture on my mental refrigerator when I went to law school.

I have been fortunate. I have had many chances to talk to the Henry Fondas of this world, although not always with a favorable result for the accused.

While I’ve never come close to impersonating Atticus Finch in defending the downtrodden at great personal sacrifice, I can almost convince myself that sometimes my trial skills have made a difference to someone. Similarly, my requests for fair, just and reasonable compensation for my clients have occasionally been acknowledged by juries.

Along the way-- it’s now been almost thirty years--- I’ve been exposed to and sometimes learned trial strategy, the powers of persuasion, jury selection, questioning witnesses and I believe I have even acquired a passing familiarity with the rules of evidence. I have had the incomparable satisfaction of trying my best to do what it is I always thought lawyers did: try jury cases.

I’m beginning to question the value and utility of trial skills. They are, I fear, becoming increasingly useless. Like knowing how to make buggy whips, it is interesting but maybe no longer necessary. I increasingly feel I am a three-corner billiard player in a world of pool halls.

I often talk to law students and young lawyers who ask where they can go to get “trial experience.” More and more I don’t have an answer. Criminal law used to offer those opportunities. Now it just doesn’t. Previously, young lawyers would become prosecutors or public defenders, stay for a few years, try a bunch of cases, and then sell those skills on the private practice market. There the demand for these skills was great and the opportunities to use them unlimited. That career path has changed. Courts, especially lower courts, no longer provide an arena for trial advocacy. The volume of cases limits resources for trials. Cases are now “resolved”, not tried. There are, then, less trials, especially in the lower courts. Young prosecutors or public defenders learn to settle cases, not try them. They spend years in these jobs rarely questioning a witness under oath before a jury.

In the higher felony courts there are trials, but fewer of them, and they are tried by a smaller number of lawyers. Fewer accused can afford private counsel, so the cases that are tried are defended by public defenders and prosecuted by the same team of state’s attorneys. Originally high turnover positions, those slots have evolved into careers. Once the means to open other doors, these positions have evolved into ends in themselves. People now actually retire from these jobs. Because senior prosecutors and public defenders no longer segue to private practice, the inexperienced novitiates of the lower courts can’t move up to fill the openings that used to occur when these folks moved on. The training grounds of the lower courts no longer exist.

Federal courts also used to provide trial opportunities for criminal lawyers. That, too, has changed. One impact of the sentencing guidelines is that the cost of trials--sentences--is so high that even the financially able cannot risk that much of their freedom by going to trial. Defense counsel, retained or appointed, cannot expose their clients to those risks. And prosecutors, those who hold the positions of Assistant United States Attorneys, spend their time not trying cases but doing mathematical calculations, convincing defendants to plead guilty. These positions, too, have become careers in themselves, not the stepping stones they once were. Former AUSAs tend not to move as easily into private practice as before. When they look to leave they now offer much less; how many firms really need someone with expertise in calculating sentencing guidelines.

What about private practice on the civil side? Are there opportunities there to try jury cases? Not really. There are several reasons. The caseload pressures that compel plea bargains in criminal courts forces settlement in civil courts. The business has to be moved. That’s not all, however. Just as the sentencing guidelines have increased the risks of trying criminal cases, so too has the public attitude about personal injury actions, influenced in large part by the public relations efforts by insurance companies, increased plaintiffs’ risks of trying civil cases. This combination has led plaintiffs to seek the safer harbors of arbitration and, sometimes, court trials. This makes financial sense. While the potential gains in those arenas is less, so, too, is the potential loss.

The same holds true for commercial litigation. The economics of those ventures are staggering, the cost of those trials is overwhelming. As a business proposition, trials do not make sound financial sense.

Neither court trials nor arbitrations require the same refined skills of jury trials. While there are unquestionably valuable exercises in lawyering--very good lawyering at that--no one can honestly claim that these are the same as jury trials, honing the same expertise and developing the same skills.

So, I really don’t have a good answer anymore to people who ask me where they can get good jury trial experience. Rather, in the fine New England tradition, I answer a question with a question, Why do you want that experience? Nobody’s buying buggywhips anymore.