Rise in dispute resolution leaves fewer courtroom opportunities for trial lawyers

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The pop culture image of a lawyer involves striding around a courtroom, arguing with a jury, and making vociferous objections to a judge. Think Perry Mason, or any of the myriad district attorneys from the television show "Law and Order."

"When TV and movies show lawyers at work, they don't depict them hunkering down in a law library drafting a will," said Downtown trial attorney John Gismondi. "There's a certain glamour attached to that aspect of being a lawyer. That's the perception of what a lawyer does."

But, due in part to a rise in the popularity of alternative dispute resolution strategies such as mediation and arbitration in civil cases, young lawyers may be seeing fewer opportunities to learn courtroom trial skills.

Mr. Gismondi, who has been a practicing trial attorney for 30 years, teaches a course in trial advocacy at the University of Pittsburgh. The appetite for learning trial skills is still strong among students, he says, but they need a place to hone those skills.

"If cases aren't going to trial, that means it's harder and harder for the new generation of lawyers to acquire trial skills," he said. "As a result, the bar as a whole has fewer people who are skilled as trial attorneys."

He pointed to stats collected by the Academy of Trial Lawyers of Allegheny County, of which he is immediate past president. In the Allegheny County Court of Common Pleas, the number of civil jury verdicts dropped from 272 in 2000, to just 72 in 2012. 

According to data from USCourts.gov, the website of the U.S. District Courts, Pennsylvania saw a decrease in the number of civil jury trials during that same 12-year period, from a total of 454 in all three Pennsylvania district courts in 2000, to 316 in 2012.

Carole Katz, a Downtown-based mediator and arbitrator, said mediation and arbitration offer ways to resolve civil disputes that can be less expensive, and give parties more control over the outcome.

"But if you want to be in litigation, trial skills are very important," Ms. Katz said. "They provide credibility when you're in mediation, that you are willing to go to the mat for your client if the case isn't resolved." 

Ms. Katz, who was vice president of litigation for Moon-based transportation company FedEx Ground for six years, said when she hired litigators, she looked for lawyers with trial experience. That experience is becoming harder to come by, she agreed, but it's worth it for young lawyers to seek it out.

"I looked for things like a strong show of passion and a desire for trying cases, even if they didn't have a lot of opportunities," she said. 

The number of criminal jury trials has declined over the past decade as well. In 2000, Pennsylvania's district courts saw 137 criminal trials; in 2012,  that figure was down to 116.

Patrick Thomassey, a criminal lawyer based in Monroeville, said he believes minimum mandatory sentencing rules are the main reason behind the shift. Defendants in non-violent criminal cases, such as drug possession, would much rather take a plea bargain than face the mandatory prison sentence they face at trial, he said. 

"I think mandatory sentencing is the worst thing ever to happen in criminal law," Mr. Thomassey said. "Sometimes you want to say, 'why do we even have judges if they have no discretion?'" 

With fewer trials on the docket, Mr. Thomassey said, eventually the quality of defense available, even in serious cases as homicides, will begin to suffer. "You have lawyers who have been practicing for five, six years, who have never had a jury," he said. 

Mr. Gismondi said for the most part, resolving a case before trial is not a bad thing. But he said lawyers need to know how to try a case, and they can't get that experience solely in a classroom.

"I can offer an analogy: It's always better for a patient if their condition improves, and they get better, so they don't need surgery," he said. "However, there will always be a certain number of people who need surgery, and the hospital has to make sure it has skilled surgeons to do it when it needs to be done."

He said even if a law student wants to practice civil law, he or she should consider trying to develop trial skills in criminal court, which will give at least a foundation of how it's done. 

"The law schools are doing about what they can be expected to do," Mr. Gismondi said. "But we are going to have a younger generation of lawyers who are not as skilled in the courtroom or as experienced in the courtroom as their predecessors." 

Kim Lyons: klyons@post-gazette.com or 412-263-1241. Twitter: @SocialKimly


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