Monday, December 11, 2006

You say trials are vanishing like it's a bad thing

Vanishing trial just sleight of hand?The "vanishing trial" phenomenon is a crisis in the law, according to a recent article in the Boston Globe. Young trial attorneys aren't getting the chance to build trial skills since purportedly few cases now go to trial.

Here's the reason, according to the Globe:
Because of the high cost of going to trial, fear of unpredictable jury verdicts, and other factors, many cases instead are being resolved through settlements, mediation, and arbitration, which litigants often prefer to the emotional ordeal of going to court.
Help me out here. What exactly is the problem?

I took pen (or actually keyboard) in hand to write a letter in response, which the Globe published:

It’s too bad that you framed the phenomenon of the so-called vanishing trial as a problem and not a positive ("Few chances for lawyers to develop trial skills," Page A1, Nov. 29).

There's evidence to demonstrate that the decrease in trials is due to better case management practices by the courts, combined with the fact that so many courts now offer an array of dispute resolution mechanisms, such as mediation, which encourage the early and mutually satisfactory settlement of disputes. If fewer cases go to trial for these reasons, then our overburdened courts and litigants all benefit.

The article also unwittingly perpetuates the myth that television delivers to us daily that all attorneys do is litigate. While trial skills continue to be taught in law schools and are part of any attorney's tool kit, these are not the only skills that our profession calls upon or that attorneys develop or law schools teach. The most important roles attorneys serve are as advisers, negotiators, problem solvers, and even healers of conflict. If fewer cases are going to trial, then it may simply mean that attorneys are doing their job in fulfilling these other roles.
The vanishing trial--a conjuror's trick or a crisis in the law? What do you think?