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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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