I have been a bit obsessed lately with the coming extinction of trial lawyers. I can’t apologize, Gentle Reader, but at least I can warn you before you dive into under analysis this week. I’m fairly sure this will be the last time I bring it up. Pretty sure. Okay, to be honest, there is a chance it will come up again.
Being the doomsayer for one’s profession is a fool’s errand. Until the end comes, the prophet is mocked. Once the prophecy comes true there is no one left to throw a parade. Parades are overrated anyway.
When I was a young lawyer I wanted to be board-certified. It seemed the logical next step for a starry eyed young professional. Board certification has become almost a required step in the medical field and lawyers should keep our standards high as well.
At least in my state, the legal profession views certification as “something else.” Any time we list that we are board-certified, a disclaimer is required. It’s almost as though we were selling under coating or an extended warranty. The Bar doesn’t want to hop on a bandwagon, even if it is decades old.
Before the internets and fake credentials, the only certifying organization for lawyers was the National Board of Trial Advocates. In keeping with the seriousness of being certified (as opposed to certifiable, which the quest arguably made me) their requirements were daunting. Weeks in trial combined with days of motion practice and months of depositions were needed, on a form with lots of columns and rows. I kept my list in my desk for several years while I waited to qualify.
It took the better part of my first decade as a lawyer before I finally met the requirements to get to the next step of certification- the privilege of sitting for a full day exam. Unlike the bar exam, I had to arrange this one myself with a lawyer who was also certified. There were only a couple in my state at that time and the one that I knew best was two hours away. I made the drive and took the test. I passed, which gave me access to the final certifying step- paying my annual fee, filling out annual reporting forms and framing my certificate.
In 2006 the organization changed its name to the National Board of Legal Specialty Certification. Either this was early recognition that trial lawyer numbers were dwindling, or somebody thought they needed more words in the name to abbreviate. You can’t have a good organization without a snappy acronym after all.
Whether due to grumblings from old timers or some other reason, the NBTA took its old name back in 2015. By nowthe organization had expanded to certify family law advocates and Social Security disability lawyers. In addition, the requirement that trial lawyers actually try cases before they could become certified was relaxed.
The changes in NBTA continue. Last week I got my quarterly email from them. The organization was once again expanding, now certifying “civil pretrial specialists.”
Jury trials have become such a rarity that the board could no longer relax the prerequisites to become a certified trial lawyer any further with a straight face, which meant fewer members. It was forced to create a whole new animal. Just as the first furry rodent predicted the end of dinosaurs, so also this.
Civil practice rarely ends in trial these days, yet the number of lawyers who call themselves “litigators” has not diminished. Along with many others, I blame written discovery. There is little need to try a case anymore because all of the facts are well known to both sides. Trial by ambush is gone, much to the chagrin of the ambusher. And the relief of the ambushee. Having been both, I am not sure if the trade of discovery busy work for certainty is a good one or not.
In a typical lawsuit, the plaintiff files a petition/complaint that makes vague allegations. The defendant receives this paper and is outraged to be so accused. Both sides then exchange written questions. Neither provides groundbreaking or particularly helpful responses.
The next exchange, completed via email, Snapchat or some such by modern litigators, doesn’t actually work out the discovery disagreements. It is merely an attempt to schedule a time to attempt to work out the disagreements.
When that ultimately fails the parties are off court. Reduced to a grade school conversation, modern litigation looks something like this:
“You know what you did.”
“No I didn’t, and how dare you say so!”
“Answer some questions!”
“You answer some questions first!”
I am not a pretrial specialist and I may be oversimplifying. In the early days of my career trial lawyers met at a call docket for motion practice. It took up the better part of Monday morning, but with so many lawyers in the same place at the same time, a lot of matters got resolved that weren’t even on the docket.
I often thought the motion docket was a nuisance, but now I miss it. It made trial lawyers feel like part of a community instead of faceless enemy combatants. Add Monday call dockets to the list of things in my life that I didn’t appreciate until it was too late.
Perhaps I am waxing nostalgic Gentle Reader. Nostalgia, after all, is memories made foggy by time and I have a lot of time logged as a lawyer. I hope the Civil Pretrial Specialists are someday nostalgic as well, although “I remember the time I took up some objections to form discovery in two different court rooms,” doesn’t have the same ring as “I once tried two jury trials in the same week.” But it will have to do.
©2018 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 kids throw that ball in his yard one more time, there will be trouble. Comments or criticisms about this column may be sent directly to Under Analysis via email.