It’s well known that there are fewer and fewer civil jury trials. Which means less opportunity for younger lawyers to gain trial experience. Given the importance of jury trials to our system, Pennsylvania has decided to do something about it.

I recently listened to a Legal Speak Podcast in which Aleeza Furman interviewed Pennsylvania Supreme Court Justice Christine Donohue. Justice Donohue talked about a new program she recently helped institute called Project Litigate. The program will create more opportunities for junior lawyers to get trial and courtroom experience and hone their skills. It stems from the sad fact that there are fewer and fewer trials.

I have written before about the dangers of the reduced number of trials. Justice Donohue cited some alarming statistics in Pennsylvania. In 1997 in Pennsylvania some 2116 civil cases were tried to a jury verdict. In 2019, the last year before the pandemic, only 706 cases were tried by juries. I suspect that post-pandemic, there will be even less. Pennsylvania is not unique in this regard. Says Donohue, “Younger attorneys need the opportunity to stand up on their feet and present their cause to the judge and jury.”

Project Litigate

The Project was instituted at Justice Donohue’s request but implemented by lawyers. A Pittsburgh attorney, John Gizmondi, at Justice Donohue’s request, put together a task force of attorneys from across Pennsylvania. The Task Force looked at whether there was a problem with getting younger lawyers more trial and courtroom experience. More importantly, it analyzed what could be done to fix it. The state bar association and various plaintiffs and defense lawyers associations all came forward to assist. All had representatives on the task force.

The Pledge sets out various steps that can be taken within law firms to get younger lawyers involved in trial work

Ultimately the Task Force formulated a pledge for law firms to help younger attorneys get more courtroom experience. The Pledge sets out various steps that can be taken within law firms to get younger lawyers involved in trial work. The Pledge encourages younger lawyer involvement from the very beginning of cases. It promotes things like young lawyers shadowing more experienced lawyers at depositions, taking lead roles in depositions, and taking roles in trials and trial preparation.

The Pledge provides that lawyers and law firms will encourage Pennsylvania trial judges to also take part in the effort. A related task force of trial judges resounding perceived the same trial experience problem that Judge Donohue saw. This judical Task Force also sees the need to create opportunities for young lawyers in the courtroom and is developing its own set of recommendations. These recommendations include such things as judges making room for younger lawyers to argue motions in court. By having oral hearings on motions that might otherwise be decided on briefs if a younger lawyer is involved is one way to do this.

We need to make room for less experienced lawyers in those cases that are, in fact, being brought to court and tried before juries

Says Donohue, “We need to make room for less experienced lawyers in those cases that are, in fact, being brought to court and tried before juries.” Project Litigate aims to bring awareness to the problem. And educate law firms and lawyers about how to mentor young lawyers and get them trial ready. Judge Donohue believes the Project is being widely backed. She also notes the Project and Pledge is a great tool for firms to recruit and retain younger lawyers who want to be trial lawyers.

Why Are Jury Trials Important?

Project Litigate sounds great, but is it really needed? After all, most cases are settled these days anyway.

But trial by jury of peers has long been regarded as a fundamental aspect and cornerstone of our justice system. The results of jury trials represent community standards. A jury’s verdict will reflect the community’s prevailing values and societal norms. Jury verdicts make the dispute resolution more acceptable and credible to the general public. Since jury are composed of community members, verdicts align with the collective community’s understanding of what is acceptable. What is fair both in terms of liability and level of damages. And since community standards often change over time, it’s important to have a flow of jury verdicts to reflect current standards.

Says Justice Donohue,” It’s really important in general to be certain that we as a legal profession have lawyers who are skilled in practice in appearing in courtrooms and presenting their cases to both judges and juries. It’s really important at another level because our society really depends on having jury trials take place.” Juries play a critical role in our society, “and there is a primary reason for that. What juries do is they decide disputes among individuals…that need to be resolved. It’s an important part of how our system operates.”

So how does the reduced number of trials impact our justice system when most cases are settled?

Today, most civil cases are settled before trial. But those settlements need to be fair and just. To be fair and just, they need to approximate what an actual jury would say is fair and just. How do most lawyers determine if a settlement offer is fair and just? In large part by looking at what juries have decided in similar cases in the past.

But what if those past results are dated? Or not similar to the case at hand? In that case, the validity of the settlement–whether it is fair and just—is hard to determine. It’s harder for the parties to determine whether to accept a settlement as fair. It’s harder to predict what today’s juries would say about the dispute.

And we see some examples of what this disconnect can cause. Years ago, I wrote about the Kodak-Polaroid IP dispute. Edwin Land, founder and CEO of Polaroid, demanded a jury trial against Kodak. He did so even though his lawyers believed that a jury would take a strict view of patents in assessing whether they had been infringed. This notion was based on trial results that were several years old. But Land thought to the contrary. He believed the community standard and attitude toward IP had changed. Sure enough, he was right. Had Land accepted the prevailing view, he would have settled for much less. This opened the door to future trials of other patent cases.

And as a defense lawyer, the prevalence of so-called nuclear verdicts scares me to death. But they may, unfortunately (from a defense perspective) reflect a changing community view toward what level of damage is fair and just. But without more cases going to trial, it’s hard to know that.

What Does This Have To Do With Trial Experience?

Plenty. Fewer trials, fewer lawyers with trial experience. Fewer lawyers with trial experience, fewer trials. With fewer trials, the notion of what the community thinks is fair and just is harder to ascertain in settlement negotiations. This difficulty hurts both plaintiffs and defendants. It reduces the confidence of the public in our system.

While some lawyers are naturally better trial lawyers than others, almost all lawyers get better with courtroom experience

And make no mistake. While some lawyers are naturally better trial lawyers than others, almost all lawyers get better with courtroom experience. This experience makes you better at trial and throughout the litigation process. Knowing how evidence uncovered during discovery will play out at trial, for example, helps you be better prepared for trial. It helps you get a better result, whether at trial or in settlement.

That’s why what Judge Donohue and the Pennsylvania Bar are doing is essential. Certainly, there is no experience better than trial experience. But giving younger lawyers a chance to have more courtroom experience in general helps them gain confidence. It makes them more comfortable in a courtroom. It makes them less afraid of trial.

Yes, there is no question that lack of experience is only one of the reasons for fewer trials. The enormous costs of trial and discovery play a significant role in lawyers’ and clients’ reluctance to go to trial. Our civil rules and attitudes toward discovery are geared toward a “scorched earth” process in every case. Everything must be known before trial so there can be no surprises.

But part of this discovery attitude stems from lawyers’ lack of trial experience. They don’t know how to handle surprises in the courtroom, and they consequently fear them. So then try to be sure that the trial is a scripted event. All of this increases the cost of litigation. All of this leads to fewer trials.

Yes, the Pennsylvania system is not perfect. But it’s a start. It’s a start because it recognizes we have a problem. It’s a start because it acknowledges that having more trials is vital to lawyers, clients, and our society in general. Thank you, Justice Donohue and Pennsylvania. Let’s hope more states pick up the gauntlet. It’s our collective obligation.