ILNews

Litigation training in short supply

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

Fewer jury trials during the past decade have created concern that young lawyers are losing the ability to gain real-world litigation experience, leading more lawyers to turn to law schools and internal firm training to get what has been a fixture in the practice of law.

State courts have seen the number of trials drop by more than 500 between the years 2000 and 2010, which attorneys attribute to an increased use of mediation. Court statistics released by the state judiciary’s administrative division show that 1,514 jury trials occurred last year; in 2005, there were 2,450 jury trials.

herzog_david-mug.jpg Herzog

“Litigation still drives our system,” said Valparaiso University Law School professor David Vandercoy, who teaches skills training and heads up the school’s legal clinic. “We’re moving forward on the thought that even with a decline in jury trials, our system is still adversarial in nature, and so lawyers need to be equipped to handle these litigation issues even if they can’t get the experience from actually being in court.”

At Valparaiso, Vandercoy said half of the third-year law class does firm externships to help provide that experience.

“Most of our students see that litigation training as something that makes them more marketable,” he said. “They need these skills whether they’re litigating or not.”

Law firms agree about the importance of litigation exposure. Many have mentoring programs for associates or send younger attorneys to litigation training programs. Some have mock courtrooms – Faegre Baker Daniels has one in its Minnesota office.

Faegre Baker Daniels partner David Herzog, a longtime litigator at the trial and appellate level, said his firm sends third-year litigation associates to the National Institute for Trial Advocacy to learn those skills.

“It’s getting harder and harder to get that experience, and while NITA is a great resource, there’s no substitute for real-life trial experience,” he said. “You aren’t ever going to see an end to litigation and jury trials because sometimes reasonable people disagree, and the only way to resolve a dispute is to go to court.”

Herzog, like many lawyers, attributes the decline in litigation experience to the increase in alternative dispute resolution. He said attorneys used to be responsible to maneuver mediation during the course of litigation, but now that role has been largely transferred to neutral mediators. Herzog thinks the decrease in jury trials has actually had a negative impact on attorney-to-attorney mediation.

“The saying used to be that you settle cases on the courthouse steps … because that’s when the sense of real urgency and pertinent risk sets in,” Herzog said. “Having that trial experience makes you appreciate the risks of litigation and gives you credibility with opposing counsel when trying to settle a case. If you’ve never tried a case, and you sit across the table trying to get a specific number, that lack of experience is a credible threat to your bottom line.”

experience-chart.gifIndianapolis attorney Kara Kapke with Barnes & Thornburg, who’s been with the firm since 2005, tries to weave courtroom-specific aspects of a case into all of her litigation tasks. For example, when she’s doing a deposition or planning for motion writing, she often asks herself what might happen in court and how she would respond.

“Even if you’re not on your feet in court, you’re at least keeping your mind fresh about what litigation might throw at you and how you can handle that,” she said.

Her colleague, partner Scott Murray, said that the firm pairs younger attorneys with seasoned litigators, sends associates to training and also puts them on the front lines of arbitration where they can get experience that’s similar to what they might face in a courtroom. He recalled how a team of associates divided its handling of questions, motions and other aspects of arbitration against a lead partner at a New York law firm.

“You have to get that experience where you can, and these days it’s tougher to find those opportunities,” he said.

bruess-charles-mug.jpg Bruess

Retired attorney Charles Bruess in Brownsburg – who practiced law 30 years at Barnes & Thornburg before becoming a courtroom deputy for U.S. Judge David Hamilton in the Southern District of Indiana – has been working for the past three years to help teach what he describes as “the lost art of litigation” to the legal community. He wrote the book “What You Didn’t Learn in Law School about Trial Practice,” in 2007, and since then, he’s been teaching continuing legal education and consulting with attorneys on litigation practices he observed during his career.

Bruess is working with the Indiana State Bar Association to possibly offer free CLE on the topic of litigation, and he hopes that more of the legal community is willing to embrace the CLE to learn the litigation lessons that come from first-hand experience.

Lawyers who have attended Bruess’ sessions have told him that they took his lessons with them into practice. These can be simple tasks such as knowing to look up a judge’s local rules before stepping into court and being prepared for objections to not be recorded if the lawyer is not standing up, Bruess said.

“I get a lot of personal satisfaction from that, bumping into people who say they’ve asked themselves a question at a deposition or thought about something before going into court,” he said. “These things may never happen to you as a practicing lawyer, but at least you’ll know they are possible in litigation and you can be ready.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

ADVERTISEMENT