Hon. Eric V. Moye, Victor D. Vital & Nicholas A. Sarokhanian 2015-02-26 02:15:29
FIGHTING BACK he Dallas Bar equips today’s young lawyers for the future’s civil jury trials. The way to get started is to quit talking and begin doing. —Walt Disney THE PROBLEM AND ITS CONSEQUENCES The judge scoffed, “I don’t know how lawyers are trying cases these days, but ...” An author of this piece recently observed a young trial lawyer draw a judge’s ire for objecting to evidence admissible under a well-recognized rule of evidence and then turning around to offer the same type of evidence when helpful for the lawyer’s case—all without flinching at the irony of what just occurred. The judge was right—lawyers are not trying enough cases these days. The trend is troubling. Civil jury trials are becoming rarer and rarer. Judges, law professors, and trial lawyers annually groan as new empirical evidence confirms what they suspected: even the best of the bar do not try as many jury trials as they once did. As explained by Hon. Patrick E. Higginbotham, 1 Hon. Royal Furgeson,2 Hon. Nathan L. Hecht,3 Professor Marc Galanter,4 and many others,5 this tendency impacts our system of representative democracy (fewer jury trials mean fewer citizens who participate in governance as jurors and fewer who have knowledge of the state’s laws);6 the bench (fewer jury trials mean less experienced judges, particularly newer judges); the bar (fewer jury trials mean less experienced trial lawyers);7 and the public (fewer jury trials mean fewer appellate opinions, reducing the predictability of the common law8). But tribulation does not compel defeat. Recognizing that the principal way to combat this trend is to train excellent new lawyers who will later take the bench and preside over future trials, many in Dallas are finding ways to get young civil lawyers this essential experience. DALLAS BAR OPPORTUNITIES Dallas is fortunate to have skilled trial judges and lawyers who are generous with their time, as well as three law schools that foster an active and thriving bar. Through organizations such as the Dallas Bar Association, the Dallas Association of Young Lawyers, and the J.L. Turner Legal Association, which is the city’s African-American bar association, young lawyers have frequent opportunities to be mentored by some of the best in the state. The DBA’s Trial Skills Section meets monthly and hosts interesting and helpful speakers who share their tips for arguing cases to juries. The section, in collaboration with the DBA’s Morris Harrell Professionalism Committee, also holds an annual Trial Academy, in which a select group of young solo and small-firm lawyers are invited to participate in a several-months-long, hands-on workshop taught by more than a dozen Dallas jurists and many Dallas trial lawyers. Additionally, the JLTLA conducts a Trial Advocacy CLE Series for not only its own members but also for all members of the Dallas Bar (and, occasionally, students from local law schools). The workshop has judicial participants including Hon. Sam A. Lindsay, Hon. Tonya Parker, and Hon. Ernest White. Typically held in Judge Eric V. Moyé’s courtroom, it breaks the trial process into nine segments, and members of the JLTLA demonstrate and discuss best practices in advancing each of the various components of a civil suit from voir dire to closing argument. Aspiring trial lawyers observe and participate in the delivery of a case to the court and a jury. The workshop, which is held monthly, gives young lawyers the chance to be mentored both by the individual judges and their colleagues on the bench and also exposes them to some of the region’s top trial lawyers, which helps improve their performance on the occasions when they find themselves in trial. FIRM TRAINING FOR YOUNG LAWYERS Some law firms in Dallas are finding ways to equip their young lawyers for eventual jury trials by honing their skills internally. One well-established firm, for instance, invites associates from its Dallas, Houston, and Austin offices to its annual Trial Skills Academy in Houston. At the academy, they try several “mini-trials” in an intensive four-day workshop led by firm shareholders and a former trial and appellate judge. Others partner with outside groups to give their young lawyers trial experience. In one such partnership with the city of Arlington, young lawyers serve as volunteer city prosecutors for one day per week for nine weeks; on average, the lawyers try five to eight jury trials before completing the program. They create reports containing what they learned, which helps senior trial lawyers at the firm provide valuable feedback on how to improve. DALLAS COUNTY DA’S “LAWYER ON LOAN” PROGRAM Similarly, the Dallas County District Attorney’s Office has partnered with Dallas law firms on its Lawyers on Loan program, where young civil lawyers try jury trials as Dallas County prosecutors. After participating in this program, these civil lawyers return to their firms with increased trial skills and more confidence in the courtroom, which serve both their employers and the public well. “EXPEDITED ACTIONS” RULES The rules implementing the “expedited actions” process went into effect about two years ago.9 Subject to certain exceptions, 10 in cases where a claimant seeks a maximum of $100,000, the new rules provide for just 180 days of discovery, which begins on the date the petition is filed, and strict limits on setting trial dates and for continuances. These rules give litigants a chance to try their cases within nine to 11 months after filing. Because of the relatively smaller amounts in controversy and fast schedules, several Dallas County civil trial judges are optimistic that these new rules will give young lawyers more opportunities to try civil jury trials. CONCLUSION Lawyers in Texas and elsewhere need to do many things to reverse the seemingly relentless trend of vanishing trials and the resulting inexperience of many young trial lawyers. But, borrowing from Mother Teresa’s approach of attacking large problems “one person at a time and always start[ing] with the person nearest you,” we should increase our efforts to get young trial-oriented lawyers the skills that the future will need, in whatever venue, in whatever kinds of cases, and with whatever amount in controversy. The bench, academia, and the bar should work together to offer frequent and helpful mentoring prospects and programs to these young lawyers, and law firms, large and small, need to provide them with opportunities to participate in the few trials that occur, even if their time is not billed to clients. Committing now to training these new lawyers, even if done in triagelike circumstances, will help us restore the civil jury trial to its previous standing. NOTES 1. Hon. Patrick E. Higginbotham, The Present Plight of the United States District Courts, 60 Duke L.J. 745 (2000); Higginbotham, So Why Do We Call Them Trial Courts?, 55 S.M.U. L. Rev. 1405 (2002). 2. Hon. Royal Furgeson, Civil Jury Trials R.I.P.? Can it Actually Happen in America?, 40 St. Mary’s L.J. 795 (2009). 3. Hon. Nathan L. Hecht, The Vanishing Civil Jury Trial: Trends in Texas Courts and an Uncertain Future, 47 S. Tex. L. Rev. 163 (2005). 4. See, e.g., Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459 (2004); Galanter, The Hundred-Year Decline of Trials and the Thirty Years War, 57 Stan L. Rev. 1255 (2005); Galanter, A World Without Trials?, 2006 J. Disp. Resol. 7 (2006); Galanter and Angela Frozena, The Continuing Decline of Civil Trials in American Courts, Pound Civil Justice Institute, 2011 Forum for State Appellate Judges. 5. See, e.g., Hon. Mark W. Bennett, Judges’ Views on Vanishing Civil Trials, 88 Judicature 306 (2005); see also David J. Beck, A Civil Justice System with No Trials: Are we sure we want to go there?, 76 Tex. B.J. 1073 (2013). 6. See, e.g., Furgeson, 40 St. Mary’s L.J. at 804-05; see also Bennett, 88 Judicature at 308 n. 10 (summarizing Alexis de Tocqueville’s views of American juries) (internal citation omitted). 7. See, e.g., Hecht, 47 S. Tex. L. Rev. at 181. 8. See, e.g., Beck, 76 Tex. B.J. at 1075. 9. The changes included revisions to Rule 47(c) and 190.2, and the addition of Rule 169, of the Texas Rules of Civil Procedure. 10. The expedited actions rules do not apply to cases governed by either Chapter 74 of the Texas Civil Practice and Remedies Code or the Texas Family, Tax, or Property Codes, probate or guardianship proceedings, or cases brought in justice courts. See, e.g., Tex. R. Civ. P. 169(a)(2); Tex. R. Civ. P. 47 cmt. HON. ERIC V. MOYE is the presiding judge of the 14th Judicial District Court of Texas, having been elected in 2008. He previously served as presiding judge of the 101st Judicial District Court. He holds a Bachelor of Arts with distinction in political science from Southern Methodist University and a Juris Doctor from Harvard Law School, where he is a member of the guest faculty. VICTOR D. VITAL is a trial lawyer in the Dallas office of Greenberg Traurig. Vital focuses his practice on high-stakes courtroom matters and has tried more than 100 cases in his civil and white-collar criminal defense practice and as a former state prosecutor. NICHOLAS A. SAROKHANIAN is a trial lawyer in the Dallas office of Greenberg Traurig. Sarokhanian represents businesses and executives in civil commercial disputes and white-collar criminal matters.
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