Where Have All the Trial Lawyers Gone?


image     A July, 2008, article in the ABA Journal asks “Is There a Specialist in the House?”  See www.abajournal.com.

We discussed the issue of fewer trials in our prior post of 7/1/08, “Corporate Litigators Need Practice to Stay Sharp.”

The American Bar Association article notes that there are fewer tort trials, therefore, fewer trial lawyers seek certification as trial attorneys either through their state boards or other groups, such as the National Board of Trial Advocacy.  Some states, such as Texas and New Jersey, have a state board which grants a certification in trial law.  New York does not have such a designation or certification.  Incidentally, in New York it is prohibited for an attorney to advertise that he is a specialist except in the field of patent law.  In New York it is permissible to advertise that one’s practice is either “limited to”  or “emphasizes” a particular specialty.

The ABA article also notes a statistic that the number of tort cases that have concluded by trial have dropped 80% since 1985.  It is also noted that in North Carolina, which offers certification in eight areas, there has been a drop in its criminal law program because fewer lawyers are getting trials.  Fewer attorneys were willing to take the risk of going to trial because of harsh sentencing guidelines.  Hence, fewer criminal lawyers could meet the certification criteria.

As I noted in my prior post, I have seen some decrease in tort trials in the state courts, however, such decrease has not been terribly significant.  Indeed, with the exception of the New York County Supreme Court, the civil dockets of the other Supreme Courts are overwhelmingly tort cases, specifically negligence cases (auto, malpractice, premises, construction accidents, etc.)  

Based on my own guesstimate, I would say that the Supreme Courts in Brooklyn, Bronx, Queens, and Staten Island have civil dockets as follows:

  a)  95% Negligence Cases (Auto, Medical Malpractice, Premises, Construction, etc.);

  b)  3% Matrimonial and Family Law Cases;

  c)  1% Commercial Cases; and

  d)  1% Miscellaneous Cases (Guardianship, Incompetency, etc.)

The New York County Supreme Court is an exception because Manhattan is a commercial center.  However, even though the Manhattan Supreme Court has set aside a Commercial Division to attract cases that could have been brought across the street in U.S. District Court, the commercial judges number only about five against the remaining thirty or so who handle the usual mix of negligence cases. 

Furthermore, the statistic showing the drop in tort cases in the federal courts is not particularly alarming.  The federal courts have limited jurisdiction over tort cases, and very few accident cases end-up in the U.S. District Courts.  In my career of 28 years, I would say that federal cases have consumed less than 1% of my caseload.

I must admit that trial law has changed in that there are other means of resolving claims and disputes outside of the traditional courtroom with a judge and jury.  In the personal injury field there has been an increase the use of “alternate dispute resolution,” such as voluntary arbitration and mediation.  Indeed, there has been a growth of private firms, such as JAMS and National Arbitration and Mediation, which provide retired judges for arbitrations and mediations.  California pioneered this practice which it called “rent-a-judge.”

Nonetheless, trial lawyers representing people injured by accidents and malpractice seem to be the lawyers with the most active trial experience.  Generally, lawyers in the big corporate firms have the problem of fewer trials. 

Mark E. Seitelmank, 7/11/08, www.seitelman.com

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