Big Law, "Litigators," And The Vanishing Trial
The Wall Street Journal’s Law Blog carried a piece last week about the vanishing trial. I don’t know what the author is talking about. I try ten to twelve jury trials a year, year in and year out. And I do it in a state in which the manner of picking juries is time-consuming and wasteful, with each juror questioned outside the presence of all others, a process known as individual sequestered voir dire. Indeed, I begin jury selection in a child molestation case this morning. We expect jury selection to take five days, and the evidence itself to take two days.
But talk about the vanishing trial is all the rage among the bar’s elite. And with good reason. During 2008, there were 5,532 civil and criminal jury trials in the federal courts, down from 6,839 in 2000, and 9,844 in 1990. There are fewer trials, but does that mean trial is vanishing, or that trial lawyers are on the verge of extinction?
The chatter in the world of Big Law is that it is too expensive to try a case. That is utter nonsense. The cost of trial remains what it always was: The expense of keeping a lawyer alert and on his toes to meet the evidence presented in open court.
What has become more expensive, however, is coping with the new managerial ethos infecting the courts. The judiciary now wants to manage litigation, and thus requires all manner of pre-trial reports, conferences, briefs and pleadings. All of this digital manipulation of files yields plenty of work for the law’s leisure class, those calling themselves "litigators," the law’s paper jocks who can whip up a meaningless request to admit, evade simple answers to simple questions in the course of discovery, and file motions simply for the sake of tactics. The fact is, at least on the civil side, litigators have driven discovery costs through the roof. And judges are the willing accomplices to all this. Give a judge a chance to dismiss a case for failure to comply with a meaningless order, and you’ve made his or her day.
Call me old school, but I miss the days in which a good fight in open court was enough. There was a time in which it was not necessary to depose each blade of grass on a party’s lawn to declare the lawn green. The courts have let the parties with deep pockets kill trials on the civil side by permitting them to transform disputes of fact into contests of financial endurance. Is it any wonder that more cases settle in a regime in which the cost of saying hello has gone through the roof?
There is another, more subtle reason, that trials are less frequent. Call it the tyranny of reasonable minds. The rage now is for arbitration and professionally mediated dispute resolution. Let experts decide conflict. Juries are too risky, the new thinking goes.
But juries serve as the means of creating a set of community expectations about conduct. We used to refer to them as the conscience of a community. When we deprive juries of the ability to speak, and when we shovel conflict into secret corners out of view, we deprive trials of the function they once had of airing public grievances in a public way. Public jury verdicts are, to put it in terms Jean Jacques Rousseau might like, expressions of the general will. A word of privately and expertly decided conflicts is a world of technocrats, not a republic of free and equal citizens, anyone of whom could be called to judge the merits of a conflict.
On the criminal side, trials remain what they always were: A test of the government’s power to define deviance, and an individual’s effort to declare that the government has overreached. In criminal cases, the jury’s role is vital: it is the only body capable of reclaiming sovereignty and standing between an individual and the state. Sacrificing jury trials in the criminal context is worse that yielding to technocrats; it is a means of welcoming the tyrant’s embrace.
But the fact remains that trial is costly. It takes fees to fund a lawyer standing tall for justice in a courtroom. In criminal court, the state’s costs are sunk. The prosecutor is paid whether he tries a case or sits in his office playing solitaire on a computer. Defendants scramble for fees any way they can. The sad fact is that trial is often more expensive than a client can afford. So lawyers often do lose money taking their client’s cases to trial. It is an unavoidable consequence of the work we do. Yet we do it because it is right, and we find a means of making ends meet. Bar regulators setting reasonable fees for particular cases lose sight of the fact that trial lawyers have always cross-subsidized files, keeping the lights on by charging those who can afford to pay the electric bill, and reading by that light the files of those who cannot afford to pay. A world of need is met in the netherworld bounded by strict pro bono work and the reasonable hourly fee. Who is killing trial? How about bar fee regulators?
There is nothing I would rather do in the law than try a case. I assume each and every case I take will go to trial. Most don’t. A compromise is worked out along way. A willingness and ability to try cases forces better compromises from the other side, I say.
The privilege of standing in front of a jury and pleading my client’s case is the thing I value most about being a lawyer. When I see leaders of the bar decrying their inability to take cases to trial, I wonder what is stopping them. Surely, it isn’t all about the money, or is it? Lead by example, Big Law, and stop whining about how expensive it is to do the right thing