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Litigation training in short supply

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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.”•

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

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  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

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