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Young Lawyer Skills Development - What are your thoughts?

If an overwhelming percentage (greater than 90% by some estimates) of civil
lawsuits are resolved short of trial through mediated settlement negotiations, then
is it prudent to place so much emphasis on "trial advocacy" in legal education and
young lawyer skills development by law firms, bar associations, and others invested
in the civil justice system?

Please provide your thoughts/comments below.

Thank you to Harold Coleman of AAA Mediation.org for this week's question.

Comments (8)

Michael Orfield:

I have nothing but respect for Mediators. They do a service that I stopped doing out of frustration. I dealt with too many attorneys who did not know the first thing about the dynamics of mediation, doing everything they could to drive the parties away from that necessary common point of agreement.
Then I ran into a few firms where certain attorneys did nothing but mediation. Those mediations ran so much better. I have long advocated that Law Schools need to provide an equal emphasis on mediation skills as well as trial skills in advocacy, as well as the transactional skills needed to put things together. This emphasis should certainly flow into legal educational programs after law school, especially Bar Associations and Inns of Court.

Anonymous:

We all started some place. I had the benefit of being in a big firm after some experience as a prosecutor. You can’t be afraid of new challenges or to ask for help.

Margarita Echevarria:

No. On my plane ride yesterday I finally had the opportunity to see “ On the Basis of Sex”. The culture changing revolution assisted by Judge Ginsburg’s appeal to the Circuit Court Of Appeal regarding a discriminatory tax provision relied on research, analytical, writing and presentation skills. These skills have wider application in business negotiation, policy development and even dispute settlements for the greater advancement of society than the costly gamesmanship and delaying tactics of civil trial procedure skills.

Yes. Mediation is successful because the threat of litigation is so onerous. Moreover, while a license to practice law is not required to mediate civil disputes, the public rightfully expects any attorney engaged to assist with a lawsuit is a throughly prepared advocate who is competent to handle the entire process ...unless the attorney's practice is solely "collaborative" but even those attorneys typically have enough training and trial experience to provide sound advice in mediation.

Anonymous:

I am fine with continuing education on trial advocacy, and would like to see more on arbitration advocacy. But I agree with my peers that more attention should be paid to mediation advocacy, which is an entirely different skill. And more should be done to educate the bar on the need for such training, because many lawyers don't think they need it. But they do.

Judge Gerald Harris:

It is my belief that young lawyers are not adequately trained in trial advocacy unless they take jobs in a prosecutor’s office or with a public defenders organization. Certainly negotiating skills and mediation savvy are important strengths to be developed but learning to be, and having a reputation for being, a strong trial advocate is likely to lead to earlier and more rewarding settlements.

There are many reasons to continue to teach trial advocacy:

1. Not all cases settle. While a young lawyer may rely on senior counsel for help or to actually step in and try the case, at some point young lawyers will be senior counsel and better have some trial experience.

2. Small firms and sole practitioners may not have highly experienced senior lawyers upon whom they may rely.

3. Fear of going to trial may, consciously or not, motivate counsel to settle a case for less than it is worth.

4. A few lawyers will become neutrals as their experience grows. While there are many outstanding non-lawyer neutrals, if a neutral is a lawyer they can better help evaluate the risks and costs of trial in mediation. In arbitration, an experienced lawyer-arbitrator will have better understanding of matters such as burdens of proof and will be more tolerant of counsel knowing that no case is perfect.

4. One cannot be an effective conflict resolver if they are afraid of conflict. The best neutrals, in my opinion, are those who have girded their loins for battle, won a few, lost a few, been around the block and kicked in the teeth now and then.

A lawyer will usually not obtain a favorable settlement for the client unless and until she demonstrates, through advocacy skills, the risks to the opposing party associated with not settling.

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This page contains a single entry from the blog posted on May 19, 2019 12:08 PM.

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