WANTED: Trial Opportunities for Young Lawyers
We want the jury system to thrive, not just survive.
Published in 2016 Oregon Super Lawyers magazine
By Dan Skerritt on July 11, 2016
Many trial lawyers these days wring their hands about how few cases get tried to a jury, and how difficult it is for younger lawyers to gain real-time experience in the courtroom. I share these concerns, and challenge senior members of the trial bar to do more to create trial opportunities for the next generation.
Here are some concrete suggestions.
Use available programs.
A committee formed by the Oregon chapter of the American College of Trial Lawyers that I was privileged to serve on was charged with finding practical ways to expand trial opportunities. The committee developed two great programs, with the Multnomah County District Attorney and the Multnomah Public Defender, that allow firms to lend young lawyers to them to try cases.
The DA program allows firms to lend aspiring trial lawyers for four weeks, during which they are assigned to “misdemeanor row.” The DA’s office says the program is designed to let participants “become fully integrated into the frenetic pace of the Misdemeanor Trial Unit—a unit which handles over 10,000 cases each year. Participants have represented the people of the state of Oregon in all types of cases—theft, assault, traffic and prostitution, to name just a few.”
Participants love this program. A recent participant from my office told me, “Each day presented new learning opportunities. I learned how to adjust a planned presentation on short notice, and how to improvise when witnesses did not testify as expected.”
The MPD program is designed for firms that cannot spare an associate for four consecutive weeks. Instead, the Public Defenders Office assigns a batch of cases for an associate to follow from intake to resolution. Although the time commitment is equivalent to the DA program, it is spread out over several months and allows the associate to continue a near-normal workload while participating.
One enthusiastic alumnus, who had four jury trials, called it “the best education I could have received. My tour of duty lasted six months with MPD, which was the amount of time it took to dispose of my initial 12 cases.’’ He said the time commitment was “a small price to pay for the knowledge I gained, if you ask me or my firm.”
Senior lawyers I know all saw quantum leaps in the confidence of their associates as a result of these programs.
Why not streamlined trials rather than arbitration?
Another underused program that may increase trial opportunities is Uniform Trial Court Rule 5.150. This rule allows smaller civil cases to be exempt from mandatory arbitration, and instead be sent to trial within four months after both sides agree to use the rule. I suspect it is underused because both sides must agree. As adversaries, our natural inclination is to be suspicious of whatever the other side suggests. Senior trial lawyers should be champions of this program.
Make second-chair opportunities meaningful.
A couple of years ago, I had a trial with an up-and-coming star in our associate ranks. My inclination was to do all the heavy lifting—but I realized that was short sighted. All trial lawyers need several “first” milestones in their careers. So we split up witnesses and motions. It worked great. After the trial, the judge told me how much he appreciated that I made the role of my young colleague a meaningful one—something that was obvious because her counterpart was made to sit behind the bar to create an illusion the other side was not devoting the resources they did to the trial. I doubt anyone was fooled.
We want the jury system to thrive, not just survive. I have no silver bullet to make this happen. But we can and should do more to take advantage of the roads open to us to enhance the careers of the next generation of trial lawyers. I hope this article will inspire young lawyers to ask their firms, “Why aren’t we taking part?”
Dan Skerritt is a senior trial lawyer at Tonkon Torp, the immediate past chair of the jury committee of the American College of Trial Lawyers and a former state chair of the ACTL’s Oregon chapter.
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