by Scott Donaldson
“The Constitution guarantees a fair trial through the Due Process Clauses…[A] fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Strickland v. Washington, 466 U.S. 668, 684–85 (1984).
For several years, I worked with middle school students preparing a mock trial to be presented at the end of the spring semester. The fact pattern I used involved a dispute between neighbors that arose from the sale of an item that did not meet the purchaser’s expectations. The purchaser refused to pay and demanded another item; the seller refused and insisted on full payment. The students learned that interacting with each other inevitably leads to disputes, and that this was a common one. The question we began with was fundamental: how does this dispute get resolved? We started with the assumption that there was nothing in place, and worked through the historical evolution of dispute resolution. For example, the students saw that using violence to resolve disputes led to chaos and left the community unable to conduct business. Trials by ordeal and mystical approaches were not satisfactory. Monarchs and other arbiters could at least resolve the claims, but the students viewed the results as too dependent upon the personal biases and whims of the decisionmaker.
What the students always said they wanted was “fairness.” We looked for a dispute resolution system that at least attempted to treat all sides equally and without favoritism, and with a reasonably predictable result that could be applied to future disputes of a similar nature so that the community could govern themselves accordingly. What was missing, the students ultimately concluded, were rules that were binding and guided the decisionmaker toward a conclusion consistent with the stated goals. Thus, the judicial system was created within the classroom, and the mock trial made more sense to them.
As noted in the quote at the beginning of this article, a fundamental element of the constitutionally guaranteed “fair” trial in our judicial system is the presentation of evidence “subject to adversarial testing.” In this edition of The Alabama Lawyer, experienced lawyers and judges from across our state give practical advice on that topic in six of the most common practice areas in our state court system. The authors were asked to write as if a lawyer who had an upcoming trial in that practice area asked: “what should I focus on?” The authors refer to some of the most common Alabama Rules of Evidence (“the Rules”), as the presentation and adversarial testing of evidence is largely governed by those Rules. We need external guides, like the Rules, in part so that reliable information can be presented in an orderly manner, and to restrain the decisionmaker from making decisions based on personal preferences. The Rules are not meaningless hurdles for the parties to navigate; instead, they “should be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”[i] As the students concluded, reasonable guidelines established in advance and applied in a consistent manner help ensure that the parties have a “fair” dispute resolution process, a “fair” trial.
The authors also make suggestions about how evidence should be presented in court under the Rules, or more broadly, about a lawyer’s trial skills. I think we need to assess the quality of our trial skills today, and examine ways we can improve those skills. My reasons require that we look at where we are now, and where we should we go from here.
Where are We
The practice of law involves many different skills and activities. When we are functioning in the role of representing a client in court proceedings, we are not in the trial business; instead, we are in the dispute resolution profession. The value our profession brings to society in that activity depends upon how well we perform that role. Here’s why I think we need to improve our performance.
I have taught many multi-day evidence courses attended by hundreds of trial judges from across the country, and always learn much more than I teach. We talk to each other during and after class about law, lawyers, and the future of the legal system. The feedback from these trial judges is generally consistent regardless of geographic or demographic differences – trial skills of lawyers overall are declining, and in some areas, declining rapidly. An informal survey of trial judges in our state produced similar results, and my years as a trial judge observing trial work and as an appellate judge reading transcripts confirms this assessment. To be clear, we are talking about a perceived overall downward trend, as there many, many lawyers in our state who have the highest quality of trial skills anywhere. There are also a couple of specific practice areas where trial judges almost uniformly applaud the trial skills of the lawyers. But in general, many have the perception that we are going backward in this area, and the perception at least merits further examination.
Let’s start with our traditional system of legal education followed by on-the-job training. Our law schools are outstanding educational institutions with outstanding faculty members who are experts in education. But we all know that students often graduate with no clinical trial experience and no training in trial skills, pass the bar examination, and are then given a license to represent life, liberty, and property in court. This is not new. Today, however, at least one of the American Bar Association accredited law schools in our state does not require students to take an evidence course to graduate. This is new. So if you wonder whether your opposing counsel or trial judge ever took an evidence course, the answer may be “no.” In 2015, the bar examination review company BARBRI surveyed more than 1,500 law students, law faculty, and lawyers for a State of the Legal Field Survey.[ii] The survey showed that “only 23 percent of practicing attorneys who work with recent law school graduates and 45 percent of law school faculty members think new attorneys are ready to do their jobs.” These findings correlate with the view that graduating and passing a bar examination does not, in itself, indicate trial skill competence.
So how does the lawyer acquire competent trial skills? Historically, many lawyers learned through experience in the courtroom.[iii] Today, however, there are many more lawyers. The number of trials and court proceedings has not increased correspondingly, in part due to dispute resolution processes that arose as alternatives to litigation. This means there are less opportunities for lawyers to appear in court and, accordingly, less opportunities to acquire and develop trial skills.
This does not mean that litigation is not occurring in our state courthouses. Lawyers litigate daily in family court, juvenile court, probate court, small claims, district court, and in a plethora of hearings in criminal proceedings related to probation, bond and release conditions, etc.[iv] According to the Economic Survey of Lawyers in Alabama 2014[v], about half of the lawyers in this state practice family and/or criminal law. But when lawyers appear in court today, they are often on their own with no mentor or experienced lawyer to train them in trial skills. One survey indicates that almost 30% of Alabama lawyers are sole practitioners, and about two-thirds are in firms of five lawyers or fewer. [vi]
In 2012, I wrote an article in The Alabama Lawyer entitled “Improving Jury Service”[vii] and made this observation: “Lawyers who are actively engaged in trial work will effectively present the evidence and arguments to the jury in the most efficient manner which saves time and money to the system and to our jurors. Their clients are better served and are more satisfied with the process. Conversely, lawyers who dabble in trial work or have no experience and no mentor to consult or assist are often incompetent to try a case, resulting in enormous wastes of time and resources and dissatisfied clients.” The same analysis applies to bench trials. So a question is presented: if you are in a licensed profession and don’t get training and instruction in certain skills in school, and don’t get the opportunity to acquire those skills through experience, should you be continue to be licensed to engage in that activity? Or is there a better way, one that would increase our value to clients and to society?
Where Do We Go From Here
In the 2012 article, I proposed that we should require more training, education, or experience to obtain and maintain a license to represent clients in court proceedings.[viii] The reasons are more persuasive now. Our current system of licensing lawyers who have no education or training or experience in trial skills is not improving the quality of legal representation in court and, eventually, will erode public confidence in our value. Just for discussion, here’s a proposal to change that: Pass the bar examination and you are licensed to practice law and engage in all of the privileges of the profession except for representing clients in court proceedings. For that activity, you need an additional certification which can be obtained by either (a) establishing that you took and passed an evidence course and a trial advocacy course in law school within three years of applying for the certificate, or (b) by obtaining 80 hours of continuing legal education (“CLE”) training specifically focused on trial skills (not an “after-dinner” CLE entertainment program). Once you have obtained the certification, you must renew it every three years by establishing that you have, during the time period, appeared as counsel in at least fifteen court cases, or tried at least three bench or jury trials to verdict, or obtained 24 hours of approved trial skills CLE. If your practice does not involve representation of clients in court, you need not obtain or renew the certification.
This would ultimately reduce litigation costs and delays because lawyers with trial certification would be more informed about the Rules and better able to focus on the issues to be tried. This assessment is not novel. A writer in 1935 stated: “If we had experienced and qualified trial lawyers, much of the courts’ time could be saved. The trial lawyer, the advocate, the barrister, if you please, is not necessarily the better lawyer, but better qualified for that phase of the work. How much time is wasted, even by the most learned lawyers, who when only occasionally before the courts, having had little experience in trial work and without natural qualifications therefor, grope and even blunder in the presentation of the case, when if carried to a completion by an experienced trial lawyer, possessing natural talents for the work, the case might have been presented in much less time and in a manner certain to accomplish the ends of justice.”[ix]
Perhaps we could compare this to the medical privileging concept. A physician can be generally licensed to practice medicine in a state, but must obtain additional privileges to perform certain services within a hospital such as operating on a patient. To obtain the privilege, the physician must prove that he or she has the requisite skill and expertise in specific areas through training and/or experience. When properly implemented, the system helps to protect patients from incompetent care and the quality and efficiency of care improves. The privileges are periodically reviewed to ensure a continuing level of competency. For example, a physician who has not performed an operation in years will not be allowed to renew the privilege to operate without obtaining refresher training. For the same reasons, a lawyer who has not represented clients in court proceedings in many years should not continue to be licensed to do so without some type of review. That’s where the certification renewal process would apply.
Now, I’m not suggesting that we completely adopt the barrister/solicitor system as found in some countries, primarily because I am mostly ignorant about how those systems function. I am suggesting that we should not keep doing what we have always done and expect the results to improve. Undoubtedly, there are more consequences to be considered. For example, how would a certification process affect the desperate need for more pro bono services if there are fewer lawyers certified for court practice? One argument is it would decrease the availability of pro bono work as lawyers who are certified in trial skills would probably be busier. A contrary argument is that the certification process would not affect lawyers giving advice and counsel without appearing in court, and for those clients who need court representation, certified lawyers would be more economically able to devote uncompensated time. This could also lead to an expansion of services to be provided by para-professionals.
There may be better approaches than what I propose, but we should at least have the discussion. In 1960, Theodore Levitt published an article in the Harvard Business Review entitled Marketing Myopia. He thought businesses would do better by concentrating on the needs of the customer first and not on the product being sold, and by asking the question: what business are we really in? Lawyers who represent clients in court proceedings can adapt the question and answer: we are in the dispute resolution profession. And what are the needs of the clients? The assistance of a lawyer possessing high quality trial skills to help resolve a dispute in the most favorable way available under the law and facts and in compliance with ethical requirements. If trial skills continue to diminish, the needs of the clients will not be met satisfactorily, and society will look for other answers. I love our profession, and I am fully convinced that our society is better, safter, more productive, and more prosperous when lawyers with quality trial skills are involved in the resolution of disputes. Let’s look for ways to improve those skills.
Scott Donaldson has been a judge on the Alabama Court of Civil Appeals since 2013. He was a circuit judge in Tuscaloosa County from 2003-2013, and was in private practice from 1984 until 2003.
[i] Ala. R. Evid. 102.
[ii]Available at https://www.thebarbrigroup.com/new-lawyers-believe-they-are-ready-for-the-job-practicing-attorneys-disagree-according-to-first-ever-state-of-the-legal-field-study/. [iii] Whether this “trial by fire” approach should have been replaced years ago with a clinical training requirement as part of the legal education model is not the subject of this article. [iv] An argument can be advanced that much more attention to these areas should be devoted in the educational process, since these are the majority practice areas of lawyers. [v] Prepared by the Practice Management Assistance Program of the Alabama State Bar and available at https://www.alabar.org/assets/2019/02/Economic-Survey-of-Lawyers-in-Alabama-2014.pdf. See page 19. [vi] Id., page 9. [vii] 73 Ala. Law. 190 (May 2012). [viii] Id. [ix] W. Erskine Williams, The Barrister and Solicitor in British Practice: The Desirability of a Similar Distinction in the United States, 14 Texas L. Rev. 55 (1935).