In-House Counsel

Should Clients Insist That Young Lawyers Get Trial Experience?

It’s really not our job, says in-house columnist Mark Herrmann.

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A curious reader said that he (or she) was desperate for trial experience, but trials were almost nonexistent at his (or her) firm.  Besides, this person wrote, when a case goes to trial, clients want a senior lawyer, not a junior lawyer, to try the case.  This is silly, my correspondent wrote, because Baby Boomers will be retired in 10 years, and clients will regret their foolishness.  Clients should strive to train the next generation.

Right?

Sorry, Charlie.

First, when a big case is going to trial, we must win it.

I’m sure that you’re a great trial lawyer, even though you’ve never done it before, but where’s the proof?

From a client’s perspective, we must win the case that’s going to trial.  We’ll worry about the future in the future.

Besides, 10 years from now, my successor can always hire a former assistant U.S. attorney, or federal defender, or state prosecutor, to try the case.  Those folks are always coming up through the ranks.  It’s true that we haven’t exactly been fair to big firm associates, but no one said that life would be fair.

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Second, imagine that I let an inexperienced lawyer act as lead counsel at a significant trial.  Suppose we lose.  I report:  “We lost $40 million at trial.”  My internal client asks:  “We lost?  But I thought we had a pretty strong case.  How much trial experience did our lead lawyer have?”

“He’d never actually tried a case before.”

“What?”

“We figure we have a duty to train the next generation of lawyers.”

“You’re fired, moron.”

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Is it our role to give trial experience to young lawyers?

It is not.  That’s the responsibility of law firms, by taking on pro bono matters, or handling small cases (for little profit, or perhaps a loss) that go to trial, or otherwise.

It’s really not our job.

On the other hand, it’s not like we’re completely insensitive to young lawyers’ need for trial experience.

We tend to look for three things in our trial teams:  First, the lead lawyer must have a great deal of trial experience.

For a jury trial, that experience must be “jury trials taken to verdict.”

Not, “We’ve won many cases on summary judgment.”

Not, “We’ve handled many cases in this field of law.”

Not, “Our firm has tried many cases.”  (That’s nice.  What about you personally?)

We want a lead lawyer who’s repeatedly played this game successfully.

Second, we want diversity on our trial teams.

Our lawyers should resemble the jury.  So we don’t want three old white guys trying the case.  I know that makes life tricky for some firms, but life is sometimes tricky.

Finally, to the extent that it’s possible, we do like one of our trial lawyers to be a relatively junior partner (or senior associate).  This helps make our trial team resemble the jury (some of the jurors are likely to be young), and we’re doing our part in helping to train young lawyers.

But lead lawyers who haven’t tried a case before, or have tried only one or two cases?

Unless the matter going to trial is quite small, we’re unlikely to agree to that (let alone encourage it).

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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