An article titled “Honesty is the Best Policy: It’s Time to Disclose Lack of Jury Trial Experience” was posted in the March 2015 edition of the Texas Bar Journal and discusses a threatening trend in today’s legal world: a lack of experience in trial. Modern lawyers lack the jury-trial experience that more “traditional” lawyers have gained throughout their years. There is a distinction to be made between the terminology “litigator” and “trail lawyer”. According the Kimberlee Kovach, a professor at South Texas College of Law, a litigator in “an attorney who tries cases in court”, while a trial lawyer is simply one who resolves disputes outside of a jury trial. It is important to note that the number of cases resolved outside of trial is increasing, and thus many modern attorneys lack trial experience. Consider the following statistics as an example of this new trend:
· Within 5 years of litigation experience, 30% of attorneys had tried a case in court, and only 8% had tried more than two cases in court
· Of these individuals, 93% had settled at least one case through mediation or negotiation
· Within 10 years of litigation experience, 30% of attorneys had never tried a case in court, and only 36% had tried more than two cases in court
These statistics confirm that there are many lawyers who lack proper knowledge of the trial process and court system. This inexperience poses potential harm to clients that hire these individuals. Examples of the negative effects associated with this lack of knowledge is discussed below.
Trial inexperience conversely effects an attorney’s decisions on how to handle a client’s situation. Without experience, a lawyer cannot adequately consider the benefits of trial. For example, a case that could produce better results in court often dismisses trial as an option due to fear. Inexperienced lawyers can be afraid of taking cases to trial because in trial, there are definite winner and losers, and thus, a lawyer’s reputation is at stake. Pre-trial settlement is the safer option to resolve disputes, and thus clients who hire inexperienced trial lawyers are likely to engage in this type of resolution. In addition, lawyers who lack trial experience may not fully understand the discovery process: their inexperience often leads to extensive and unnecessarily costly discovery process. Lastly, a lack of court experience is negatively associated with the capacity to understand jury-value. Jury value is the ability to predict a jury’s reaction to evidence, and further, the value of that evidence. A lawyer who is incapable of estimating this value cannot produce the most effective results, even through means of mediation or arbitration.
Currently, a lawyer has no legal obligation to disclose information regarding their trial experience. However, the results of a recent study reveal that clients expect that their attorney has trial experience, and thus, do not ask these questions. Therefore, a lack of disclosing trial experience has evolved into an ethical issue. Clients trust that their lawyers are knowledgeable in how to properly handle their complex cases, and as it turns out, that trust is often misplaced. At Modesett Williams, we proudly employ two highly experienced litigation lawyers with ample experience in court. Consider Modesett Williams to realize the full potential of your case.