February 8, 2011

Thoughts on the "dying art of trial advocacy"

Don't know if you caught The Tennessean article that was picked up by USA Today this weekend concerning the dying art of trial advocacy, but I naturally had some thoughts as they relate to law school competitions. Those thoughts aren't nearly cohesive enough to be spun into some artful essay, so I'll just give 'em to you as they came to me.

1. The premise of the article--that lawsuits don't get tried anymore--is hardly news.

2. Even so, what will this "news" foretell for law school advocacy programs? On one hand, you could make the case that advocacy skills training is more important than ever, given that lawyers most certainly won't get on-the-job training in how to try cases. And while there's no question that trials don't happen very often, they nevertheless do happen occasionally, and I think everyone would agree that trying a case is something that every lawyer ought to be able to do (because you never know when you just might have to do it some day). If lawyers won't get the chance improve their skills in practice, then when else--other than law school--will they learn such skills?

3. On the other hand, will detractors of advocacy competitions (there are even a handful of them on the faculty at my school) use this as fodder for their arguments that these competitions add little to the educational process? If trying lawsuits is no longer a significant job duty of even those attorneys that call themselves "trial lawyers," then why do we need to emphasize it during law school?

4. Maybe there's a middle position somewhere between point 2 and point 3? Should we ask why moot court (appellate advocacy) and mock trial (trial advocacy) are the two most popular activities? Should the advocacy world instead shift its focus to other competitions, such as negotiation, arbitration, and client counseling, when it's obvious that those are the skills that lawyers will use far more often than courtroom advocacy?

Anyway, just some random thoughts. Comments?

2 comments:

hagenbush said...

A fellow law student forwarded this blog entry to me and I thought I would toss in my two cents.

My viewpoint as a law student has always been, "if I were a hiring partner, what would I want to see on a student's resume?"

I think that real world experience is obviously the most important thing. If you can say, "hey, i have been working while in school at a big firm, i have taken depositions, i have written motions, etc, etc," then you are probably golden. Assuming, of course, you have decent enough grades

The problem is this- for those not in the top 10%, or on law review, the odds of getting a job at a firm while in school went from slim to none once the economy went belly up.

So, how can someone get experience as close to "real world" as possible; especially if you were too busy (read: stupid/lazy) to try out for law review or moot court after 1L year, like I was. Mock trial seemed to be the next best solution to "real world" experience.

That being said, even if trial work is a "dying" art, what fills the gap? What about other alternative dispute resolution routes? Arbitration and mediation seem to be the logical gap-filler.

So, a few of my fellow students and I, on a bit of a whim, entered into the ABA arbitration competition this year. Although we knew nothing about arbitration when we started, we all had mock trial experience which translated quite well to the competition (we represented Georgia State University).

I guess my conclusion is this- even if litigation is dwindling, the skills required to litigate transfer quite well to increasingly popular adversarial dispute resolution forums and life in general (thinking on your feet, public speaking, organization/ preparation skills).

Anonymous said...

what is "trial advocacy"?

--ranker