Partner Stuart Sobel has authored a number of guest columns that have appeared in the Daily Business Review and the National Law Journal during the last several years, and his latest article published in the July 3 edition of the Daily Business Review is drawing considerable attention by the South Florida legal community.
Stuart’s column echoed the newspaper’s main article for its Litigation Special Report about the decline in trials, especially jury trials, and its impact in our judicial system. He wrote:
About 99.7 percent of cases are resolved without a jury trial. While this may be a testament to other means of resolution, it drastically shrinks the universe of opportunity for trial experience.
Now as a generation of lawyers matures without the cauldron of the courtroom within which to galvanize their skills, many of today’s attorneys seek desperately to avoid trial — exacerbating the loss of experience.
And since our judges are most often selected from our bar of attorneys, those lawyers without trial experience become judges without trial experience. Trials conducted by these judges will become less dependable as an effective means for dispute resolution.
Ultimately, this will intensify the public’s negative perception of our justice system in general, and it will undermine the public’s confidence in the reliability of a trial as the ultimate means of dispute resolution in particular. Scary.
Can we control the out-of-control discovery and over-lawyering of cases before trial so that budgets are not exhausted and litigants can actually afford the risk of trial?
Hourly lawyers and lawyers wary of malpractice tend to over-lawyer cases until they get close to trial. Then they hedge their bet and begin to persuade clients that trials are just too risky.
Perhaps, if we look to our own practices, we can instead do only what is really necessary to prepare to present a case in trial — and then present it.
In the process, we save clients money, gain trial experience and restore faith in the system. Just a thought.
Stuart is receiving a great deal of positive feedback and comments from South Florida attorneys and judges on his article, and we hope that the sentiments that he expressed help to bring some added perspective and insight on this critical issue.