Defense Digest

Message From The Executive Committee

In May of this year, I attended a meeting of the Insurance Round Table of the Defense Research Institute (DRI). This is a Subcommittee of the DRI that was created to address issues of mutual interest to the insurance industry and to the outside law firms that service that industry.

One of the topics that is weighing heavily at this time on the minds of the managers of civil defense firms and their clients is from where will the next generation of civil trial attorneys come? While defense attorneys may come from the U.S. Attorney's Office, the District Attorney's Office, or the Public Defender's Office, by and large, the majority of civil defense attorneys have grown up within the industry and have learned their craft from the senior lawyers with whom they worked.

However, things are changing. The number of cases going to verdict through the jury trial system seems to decrease each year for a number of reasons. First, many clients have become increasingly risk adverse and would prefer to resolve cases through mediation rather than submit them to a jury made up of twelve strangers. Second, many court systems have adopted formal mediation or alternative dispute resolution programs to reduce the number of jury trials. Third, many court systems have adopted mandatory arbitration provisions with jurisdictional limits as high as $100,000. These have had the effect of taking large numbers of cases out of the jury trial system and resolving them through a much less formal trial system.

So the question remains – How do young lawyers get significant experience conducting jury trials? A number of years ago this firm began to insist that a greater percentage of its lawyers meet their continuing legal education requirements by taking courses offered by other lawyers at the firm. This firm has a significant number of lawyers who have been trying cases for 30 years or more, and it was thought that they could pass down much of their accumulated knowledge to the firm's younger lawyers. However, the inability of young lawyers to second chair cases and the reluctance of clients to permit younger lawyers to try their cases limit opportunities for younger lawyers.

At the firm a number of senior lawyers began to offer classes on voir dire, on openings in jury cases, on closings in jury cases, on direct examination, on cross examination, and on working with experts. However, the concern was that while these courses were helpful, by and large, they were not interactive and did not require the attorneys participating in the classes to perform trial tasks.

Four years ago Christopher Dougherty, the Vice-Chair of our Professional Liability Practice Group, recognizing the need for additional trial training for our younger lawyers, volunteered to put together a Trial Advocacy course to be taught by senior members of the firm. That class has now been offered five times. Each class has four faculty members and eight lawyers enrolled as students.

By and large, most of the lawyers selected to be students for the program are our best younger lawyers and have tried one or two jury trials and a significant number of arbitrations. The thought process is that these lawyers are better prepared to be taught after they have experienced the rigors of a jury trial first hand on at least one occasion.

The program has been an unmitigated success. Bob Goggin, John Aponick, Bob Kelly, Paul Laughlin, Dan Sherry, Joseph Santarone, Chris Santoro and others have served as faculty members. Forty of our younger lawyers have completed this course. Prior to the course, each lawyer participating is given the trial assignment. They are required to give an opening address, to conduct direct examination of witnesses, to conduct cross examination of witnesses, to make objections to certain evidence, to argue evidentiary issues, and to give closings. The students are videotaped, and they are critiqued by the faculty members and their fellow students.

Feedback on the program from the faculty and from the lawyers participating as students has been uniformly positive. In fact, the commentary has been so positive that we are now looking to put together an advanced class in trial advocacy. This class would most likely be limited to four lawyers and have two faculty members. Each lawyer participating in the course as a student will be required to have completed a minimum of ten jury trials.

As we make clear to our clients, we are a litigation firm. A litigation firm has to have lawyers who have the ability and the will to try cases. The only way one develops the ability to try cases is by trying them. That lawyer's skill is honed by the frequency with which he or she tries cases, the complexity of the cases that he or she tries, and the feedback that he or she receives as each case is tried, be it from the client, the judge or the jury.

Given the changes in the industry, we as a firm have concluded that we need to dedicate more resources to turning our young lawyers into trial lawyers. We know that the industry itself will tend to put a smaller number of lawyers in the courtroom and will do so on a less frequent basis. We are committed to making sure that the quality of our lawyers' litigation skills are developed, tested and refined.

We believe it is important to the future of our firm and our clients that we do so.

I would be happy to discuss this or any topic with you and would welcome your input. I can be reached by mail at 1845 Walnut Street, Philadelphia, PA 19103; by email at tabrophy@mdwcg.com, and by phone at 215-575-2748.