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For trial lawyers, the generalist is the best specialist

2022-12-Multitasking-man-800

By Justice G. Barry Anderson and Jevon Bindman


Almost 50 years ago, Chief Justice of the United States Warren Burger rang the alarm bell regarding the “quality of advocacy in our courts.”1 He argued that the increasing complexities of the legal system required increased specialization, and in particular he called for a specialized unit of trial practitioners.2 Chief Justice Burger envisioned a “system whereby students or new graduates who have selected, even tentatively, specialization in trial work can learn its essence under the tutelage of experts, not by trial and error at clients’ expense.”3 In other words, he believed a lawyer could become a subject matter expert or a trial expert, but not both.

Chief Justice Burger may have foreseen the dramatic shift toward specialization in American legal work over the past two generations, but it has occurred in nearly every legal field except trial practice. And what he may not have foreseen was the equally dramatic decline of trial work in general. As a result, civil litigators are siloed into discrete practice areas, yet are all expected to simultaneously master the skills of presenting their cases to factfinders at trial, despite having little opportunity to develop those skills. 

Rather than complain about declining civil trial work or point to some earlier, more propitious time, this article recognizes the current legal landscape and discusses how attorneys can develop trial skills in an increasingly specialized world. Contrary to Chief Justice Burger, in a legal landscape of ultra-specialization coupled with scarcity of trial opportunities, it may well be the generalists who hold the key to unlocking essential trial skills. The authors approach this topic from two different perspectives. One author maintained a general practice for 20 years predominantly in greater Minnesota—with civil trial experience in personal injury, insurance, contract, and mechanic’s lien litigation and was certified by the MSBA as a civil trial specialist in the early days of that program­—followed by almost 25 years as an appellate court judge hearing cases from across the legal spectrum. The other author practices general commercial litigation with areas of emphasis in construction, insurance coverage, and appeals, and has participated in three jury trials in his seven years of practice. His perspective is looking forward to the coming decades and learning how to develop trial skills that attorneys in prior generations would have routinely acquired.

Attorney specialization: More than a trend?

In a 1984 opinion that disciplined an attorney for (among other things) refusing to handle a criminal matter, the U.S. Court of Appeals for the Eighth Circuit stated that any civil attorney should be capable of conducting a criminal trial, stating that “it is no more difficult to conduct a criminal trial than it is to conduct an intricate 10b–5 securities case or a complicated products-liability case.”4 This position would be unthinkable today—specialization has resulted in a clear demarcation between criminal and civil practitioners that is virtually uncrossable. 

Even within the realm of civil law, an attorney is no longer a “litigator”; instead, she practices “construction law,” “employment law,” or “products liability,” or perhaps subspecialties such as “OSHA compliance,” “noncompete and trade secrets,” and “medical devices.” The trend toward specialization is nothing new—Justice Byron White noted more than 40 years ago the “gradual change in the character of law practice from a generalist skill to an increasingly specialized one,” resulting in the “emergence of lawyers regarded and operating as… specialists… equipped to cope with problems that transcend jurisdictional boundaries and the legal competence of local generalists.”5 Countless articles in this and other publications have lamented the demise of the generalist attorney for years and have cited the following reasons (among many others) for this trend:

Proliferation of law: Codified and common law have seen exponential expansions in the past generation, and the resulting body of law is simply too broad for any one attorney to master.

•In-house counsel: Nearly all large (and many midsized) businesses now have in-house legal departments that serve as generalists for the company. Outside counsel are hired to handle particular problems rather than furnish considered judgment and advice on a broad array of issues.

•Rise of mega-firms and boutiques: Mergers have resulted in mega-firms that boast hundreds of attorneys working in every conceivable practice area and thus have little need for generalists. As a result, small and mid-sized firms have trended toward focusing on niche practices to remain competitive.

There is little doubt that specialization brings tangible benefits to both the attorney and the client. Specialization encourages attorneys to learn an area of law in great depth and to stay up to date with new developments, thus creating greater competence in the bar in general (and perhaps justifying higher billing rates). And clients are more able to choose an attorney with significant experience in the applicable industry. This results in less time spent “boning up” on a subject matter and higher quality legal services overall.6 

Trial: The generalist’s final frontier?

There is one major feature of civil litigation, however, that still benefits from a generalist perspective. The jury trial is the great equalizer—in theory, it allows each of us to be evaluated by our peers and treated equally irrespective of background or other characteristics. A jury trial is also an equalizer of sorts for attorneys—it requires technical prowess, communication skills, and perhaps some theatrical ability, and is only loosely connected with the attorney’s subject-matter expertise. 

A trial is a highly structured proceeding governed by complex rules of procedure and evidence. A trial attorney is expected to develop and refine a set of skills that are separate and distinct from her knowledge and understanding of topical areas of the law. These include examining witnesses, a thorough understanding of the rules of evidence, and persuading the factfinder through argument to interpret the evidence in favor of the client’s position. These skills are unique to the trial setting. Successful trial lawyers certainly include subject-matter experts, but it is important to recognize that generalists have built-in advantages as civil trial lawyers.

A generalist is more likely to focus on aspects of trial practice rather than the intricacies of the subject matter, which can make for a more effective presentation. A lawyer with a broad legal background may also have more experience in distilling a case to its fundamentals to determine the most compelling narrative to present to the factfinder; put another way, a generalist may be less likely to lose the forest for the trees. This is obviously an essential skill when communicating with a jury, which is unlikely to have any background in the subject at hand. But this skill is equally important in bench trials. Judges “are, on the whole, a body of generalists.”7 Courts have frequently criticized specialized lawyers who “fail[] to appreciate generalist judges’ often limited understanding of esoteric [subjects].”8 The Seventh Circuit Court of Appeals articulated the issue as follows: 

“[T]he appellate advocate must not count on appellate judges’ being intimate with his particular legal nook—with its special jargon, its analytical intricacies, its commercial setting, its mysteries. It’s difficult for specialists to write other than in jargon, and when they don’t realize the difficulty this poses for generalist judges[,] neither do they realize the need to write differently.”9

This criticism applies equally to trial work. A generalist can more easily identify concepts with which the factfinder may be unfamiliar and explain those concepts in an easily digestible way. It is similar to learning a language—a nonfluent speaker, having recently learned the language herself, is sometimes better at teaching it to somebody else.

A generalist may also tend to spot issues that specialists may miss. A specialist’s skill set is premised on identification of patterns and common issues that arise with frequency in a given area of the law. But a generalist is better able to see the whole picture and draw connections to other areas of the law that may be missed by an attorney who is siloed in a specific area. For example, shareholder, construction, and employment disputes almost always involve interpretation of a contract. A generalist might be more adept at applying knowledge from one area to another in order to craft a creative argument.

Finally, a generalist knows when she is out of her element and needs to loop in an attorney with deeper subject-matter experience. In the trial setting, this may take the form of allowing another attorney to cross-examine the opposing party’s technical expert. A subject-matter expert, by contrast, may be more reluctant to call in a trial specialist (or less likely to recognize that assistance is needed). 

Where have all the trials gone?

The characteristics that make generalists uniquely suited to trial work are only going to increase in importance as trial work itself becomes more scarce. Thirty years ago, any litigator could gain meaningful trial experience, because a full-time practice would inevitably result in at least a few trials each year. Not anymore. The past generation has seen a precipitous drop in the number of matters that culminate with a hearing before a tribunal—particularly with respect to civil jury trials. According to 40 years of data compiled by the Minnesota Judicial Branch, civil jury trial practice peaked in Minnesota state courts in the early 1990s, with approximately 900 major civil jury trials per year (and over 1,000 such trials in 1993). This number steadily declined over the next 25 years, however, and by 2019, the number of civil jury trials had dropped to less than 200 per year. That number may still be falling—2020 and 2021 each saw fewer than 100 civil jury trials in Minnesota district courts—although that decline was also influenced by the covid-19 pandemic.

There are many reasons for this trend, including increased costs of civil litigation, the voluminous amount of electronically stored information and its effect on discovery, and the rise of private dispute resolution such as mediation and arbitration.10 But the net result is an emerging generation of litigators that has had little opportunity to gain meaningful trial experience. And if an attorney’s focus (perhaps justifiably) is on mastering a particular subject matter, these trial skills will fall more and more by the wayside. The result is a generation of civil “trial lawyers” with virtually no trial experience and little opportunity to hone those skills. 

Is this really a problem?

A natural critique follows from the above discussion: If trials are so infrequent, why does it matter if most lawyers don’t have significant trial experience? Indeed, the increase in specialization and decrease in number of trials have resulted in many firms employing trial specialists who will jump into a matter as it nears trial (making Chief Justice Burger’s vision a reality, though in a roundabout way). But there are business reasons why it is advantageous for all litigators to be well versed in trial skills. The short version of the rationale is that although most cases don’t go to trial, some do, and an attorney who can comfortably handle an entire matter from investigation to jury verdict—as opposed to incurring the expense of onboarding a new trial team—provides a value-add to the client. 

The longer version is that trials are the culminating event of a civil action and provide an invaluable insight into other aspects of pretrial practice. Trial practice informs everything a litigator does, from pleading to discovery to dispositive motion practice. The overarching questions surrounding all these activities is (1) what are the elements of the claim, (2) what evidence is needed to prove those elements, and (3) how do I persuade the factfinder that the elements are satisfied? Until a lawyer has cross-examined a witness at trial, she cannot appreciate the importance of boxing in that witness at the deposition to prevent surprise answers. If an attorney has never presented a closing argument, it is difficult to understand the importance of fulsome interrogatory answers to disclose all potential evidence.

Finally, trials are the ultimate lawyer experience! They are why many of us became lawyers in the first place. Perry Mason and Atticus Finch are not revered for their well-crafted discovery deficiency letters. Moreover, trials are the most visible aspect of our profession and necessary to maintain the legitimacy of our profession. The ability to air grievances in public is essential to a free and fair society, and trial attorneys are the gatekeepers for that access.

Where do we go from here?

Although there’s no substitute for the real thing, alternative methods do exist to obtain trial experience. Trial skills courses offer a great opportunity to hone skills in a simulated yet professional setting. These week-long courses provide multiple standup opportunities in areas such as opening and closing statements and witness examination, and usually culminate in a full trial presentation. The National Institute for Trial Advocacy (NITA) and Trial Lawyers College are two well-known examples, and many state and local bar associations also offer trial advocacy programs as well.

Pro bono work offers another great opportunity to practice trial skills. Matters related to housing and orders for protection frequently go to trial, and parties in these matters are often in desperate need of pro bono representation. These trials typically involve fast schedules and one-day proceedings, making them easy to fit into a busy practice.

Lawyers lucky enough to work for a firm with a municipal apprenticeship program should take advantage of it. These programs are intended to provide meaningful trial experience to less experienced civil litigators. Another alternative: If a firm client has a large number of less serious tort cases, arrange to take those cases to trial at a steep discount as a learning opportunity.11

Finally, appellate lawyers are perhaps the last true generalists, as they are called upon to handle cases involving all manner of legal issues. And although it’s not the same as direct trial experience, appellate litigation necessarily exposes lawyers to civil trial work. Many appeals deal with issues that occurred at trial, including procedural, substantive, and evidentiary issues, providing insight into judicial review of a variety of trial issues.12 

Conclusion

Attorney specialization is here to stay, and it provides numerous benefits to both clients and the bar. But specialists still have something to learn when it comes to trial practice and, like Mark Twain,13 perhaps the reports of the demise of the general civil practice lawyer are premature. 


G. BARRY ANDERSON is an associate justice of the Minnesota Supreme Court. Prior to his appointment to the bench, he maintained a general law practice in Fairmont and later in Hutchinson, where he also served as city attorney.

JEVON BINDMAN is an attorney at Maslon LLP and focuses his practice on insurance, construction, and appellate litigation. He is co-author of several Minnesota Practice volumes published by West/Thomson Reuters, including Civil Rules Annotated and Minnesota Handbook of Courtroom Evidence.


 
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