Where Is The NextGen Of Trial Lawyers?

We need to talk about this.

kid suitA recent article in one of the many feeds I get posed the question: whither the next generation of trial lawyers? Whoa! I hadn’t thought about that issue, but it’s out there, staring us in the face as the dinosaur trial lawyers leave the courtroom arena. Who will take their places? How well will the “up and comers” have been trained for trial work? How much trial work is there anymore?

We need to talk about this. Analogous to the “he who must not be named,” and if you don’t know your Harry Potter, shame on you, this predicament will only get worse as the years roll by and dinosaur lawyers retire (!) or die with their boots on. 

Where WILL the next generation of trial lawyers come from? Note, I did not say “litigators,” since they are a dime a dozen, but trial lawyers, those people who go into a courtroom, stand before judge and jury, tell a story, and actually try a case to verdict (e.g. the jurors actually deliberate and reach a decision).

Back in my baby dinosaur lawyer days, I tried forty cases to verdict in my first two years of practice. Yes, I was in a county prosecutor’s office, where trials were the work du jour, but nonetheless, the experiences in trying cases were formative in my development as a lawyer and have influenced my practice ever since then. (These were in the days long before forensic-based television dramas and after Perry Mason, where the culprit either confessed on the stand or stood up in the audience and said “I did it.”)

Trial experience is invaluable and the only way to get it is to try cases, not litigate them. Trying cases teaches you how to construct a narrative, how to select a jury, how to talk to that jury once it’s chosen, how to make and meet objections, how to examine and cross-examine witnesses, when to speak and when to simply shut up. Those experiences, both good and bad, win or lose, have helped me in many ways.

Perhaps the best lesson I learned in those hectic two years was that, in trying so many cases (and some literally back to back when the court adopted its short-lived “no continuance policy,”) I learned how to think strategically about case presentation, what would work, what wouldn’t work in proving that case beyond a reasonable doubt.

Trying cases taught me how to evaluate not only my case but the opponent’s case, how best to anticipate defense arguments and how to counter them. When I did defense work, I always started analyzing the case in reverse (perhaps that’s why I often read the last few pages of a book before deciding whether to read it, I know, shame on me). I did that because I could then determine what kind of defense we could present. I always wanted to figure out, as soon as possible, what my evidence would be (did we fire all the potential witnesses? Any smoking guns?) The earlier I knew the flaws in the case (and every case has them), the better to decide case strategy. Settle it? Summary judgment? Try it? What was best for the client? That’s what matters.

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If you Google the phrase “where is the next generation of trial lawyers?” your search reveals a number of articles asking that same question. There’s the dearth of opportunities for younger lawyers to get trial experience. Government agencies (and a smattering of law firms) provide the best opportunities to mold trial lawyers, but, as we’ve all seen in the past eight to ten years, there just aren’t that many positions available to learn by doing.

Moreover, some law firms freak out at giving associates even an opportunity to argue a motion in court, let alone second chair a trial, and it’s taken judicial orders in some districts to get law firms off the dime.

Trying cases is a muscle like any other; it needs to be exercised. Muscle memory is vital. Today when so much of law practice is motion practice, it’s a shame to think that the next generation of trial lawyers will be an ever smaller and smaller group.

What to do? To start off, let younger lawyers have opportunities to handle mediations and arbitrations. It’s not the courtroom, but it’s still a way for those coming up to get some real world experience. They may be less formal settings, but they still matter.

If there are some small dollar cases (does anyone even file those anymore?), let the younger lawyers try them, and may be even without charge. (I see cringing supervising lawyers.) Yes, I know that’s anathema to the billable hour concept, but how else can the younger lawyers get the necessary confidence and experience to be able to handle “bet the company” trials later in their careers? 

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Millennial lawyers, check out whether your state or local bar association offers any kind of trial advocacy training (not what you did in law school). The Los Angeles County Bar Association has its TAP program, which provides “boots on the ground” experience for those who want to try cases.

However, not every lawyer should be a trial lawyer. The required skills include confidence, credibility, civility (there’s that word again), curiosity, and a competitive spirit. 

With so few cases going to trial anymore, panning for gold may be a cinch compared to getting trial experience as a junior lawyer. However, it’s our obligation as dinosaur lawyers to train and mentor those who come after us. If we don’t, who will?

More importantly, when the client asks who in your firm will try the case, what will your answer be? What will you tell the client about that lawyer’s trial experience? If the answers aren’t good enough, then your firm may not be good enough to try that case. What then?


old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer is closing in on 40 (not a typo) years as a active member of the State Bar of California. Yes, folks, California, that state west of the Sierra Nevada, which everyone likes to diss. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see old lawyers, young lawyers, and those in-between interact — it’s not always pretty. You can reach her by email at oldladylawyer@gmail.com.