Summer is in the rear view mirror now, and I am grumpy. Redneck holy days, a/k/a deer season is over. My quest to kill the evil Talibambi fell short yet again. College football is also winding down as my beloved Oklahoma State Cowboys are headed to an unimportant bowl and the Alabama Crimson Droids are downloading firmware for their inevitable championship bid. Days are short, nights are cold. In other words, it is winter around here.
The last quarter of a trial lawyer’s year is a period where not much gets done. Scheduling anything around vacations and holidays is a challenge – it is like summer but with sniffles and the flu.
Middle aged male lawyers grab for our hats when we leave home in the dark and again when we return home in the dark. My only complaint about the Kennedy administration is that he and his perfect hair made finding a good hat more difficult. Pessimistic lawyers say this is the end of trial lawyers, and we will be the next hatmakers. Or maybe buggy whip makers. (Not me, Gentle Reader, I am an eternal optimist. My glass is not only half full, but it is a drink I didn’t pay for.)
A recent study showed that civil jury trials are at an all time low in our country. Granted, the study involved federal courts where civil lawyers are red headed fourth cousins once removed, but trials are down to less than one percent of cases filed. The seventh amendment needs to hire the PR firm that the second amendment uses.
Federal court is a difficult place for many trial lawyers. The federal rules, designed to minimize expense and streamline litigation, tend to work in the opposite way. Those of us that represent injury victims know that a federal case will cost more and take more time than one in state court.
Federal court used to be reserved for “big” cases. The jurisdictional limit of $75,000 seemed like a lot when I started my career, but it hasn’t increased since 1996. $75,000 today would have translated to about $47,000 back then. In other words, if you wreck a new F150 pickup, you are in federal court. Not exactly high stakes litigation anymore.
Part of the reason fewer cases are tried can be linked to the upswing in private dispute resolution. This is mandatory at almost all levels, and means that the parties are forced to try to work out their differences. Trial lawyers are trained to fight, mediation means compromise. Not saying that the old way is better, but it is all some of us know. Law firms brag about how they win, not how they settle. At least, not yet.
Judges in the few cases still going to trial are confronted with less skilled trial lawyers. Some judges respond to this by being rightfully annoyed, others babysit the litigators and help them get their evidence to the jury. Not that I think I am Perry Mason, but my generation knows how to lay the foundations for evidence and how to present a case. Mistakes masquerading as experience taught us the hard way.
Jurors are equally flustered. Most expect a trial to go on like a TV show in 50 minutes, with limited commercial breaks. Their attention span is likewise impaired and trial lawyers face an increasingly hostile jury pool. Perhaps the fact that trial occurs less frequently is a blessing after all.
Trial lawyers can see the end of our existence. With fewer cases being tried, the skills that trial lawyers developed are fast becoming useless. I spend most of my continuing legal education honing trial techniques that I still haven’t mastered but rarely get to use.
This isn’t new, of course. I have picked over 100 juries in my career, my predecessors did that in their first 3 years of practice. The next generation won’t do that in their lifetime. Law schools still teach trial advocacy, but should probably replace those courses with mediation skills. Or hat making.
I don’t know how dinosaurs felt when the first mammals appeared- T-Rex was a lousy historian because writing with such short arms was a chore. I am sure they gobbled up the new species and thought they were delicious, right up until the last Velociraptor froze to death.
I am arguably in the late fall of my life. Some would say it is early winter for me, but they are just mean. Like every generation of trial lawyer, I have seen a host of changes over the years. If I were smarter, I would find something new to do. On the other hand, these gigantic teeth and tiny arms make me ill equipped for much else.
Unless I get a call to be a TV Weatherman, I am left to button up my coat, literally and figuratively, and press on. Plus I really like trying law suits, no matter how rare it has become.
©2017 under analysis llc. under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. If you can get him a TV Weatherman job interview, send him a note. Comments or criticisms about this column may be sent c/o this newspaper or directly to Under Analysis via email at farris@farrislaw.net.