Kenneth J. Miller partner with Haliczer Pettis & Schwamm.

One of the changes in the practice of law over the last 30 years has been the reduction in the number of civil jury trial that have been conducted. As costs have increased, the amounts in controversy have increased and the perception among litigators and litigants of the unpredictability of jurors, the impact of those issues has been less civil jury trials. The diminishing number of trials was confirmed at the recent Broward County Bar Association Bench Bar conference. A panel that included circuit judges from Broward and Palm Beach counties, as well as U.S. District Judge William Dimitrouleas of the Southern District of Florida, all discussed the decrease in civil jury trials in their respective jurisdictions.

One of the consequences of fewer trials is fewer opportunities for lawyers to try cases. That has an impact on experienced lawyers who don't have an opportunity to truly practice their courtroom skills on an ongoing basis. The trickle-down effect really impacts the ability of younger lawyers to gain trial experience.

Law schools attempt to provide knowledge and in some cases skills that can be utilized and practiced. However, as any trial lawyer will attest to, there are things that you learn about trying cases that you can only truly learn about when you experience them in real trials. Lawyers who work for the state attorney or public defender offices, typically spend more time in trial than their civil counterparts. My experience has been in the area of malpractice and insurance defense law. This issue of developing future trial lawyers is particularly significant in those areas.

Traditionally, insurance defense firms have had a senior lawyer that has a relationship with an insurance defense client and to whom the work is sent. Successful law firms that practice in this area have developed a system where they have hired younger lawyers as associates to do much of the work on these cases. The younger lawyers are involved in all aspects of the litigation up until the trial. In the past; the senior lawyer in the firm would often assign the trial itself to the junior lawyers where appropriate. This usually happened in smaller cases, those where the damage claims were not significant. Today, one of two things usually happens. The cases are settled and do not go to trial, because that makes economic sense for the client, or in cases where insurers defend the case at trial, they insist that the senior lawyer be the lead lawyer. The combination of fewer trials and clients' insistence that senior lawyers handle the trials has drastically reduced the opportunity for those younger lawyers to develop their trial skills and gain experience.

Within the last 25 years there has been a shift in the way cases have been handled. This coincided with the increase in expenses in litigating cases and the belief among many carriers that verdict amounts were going up. I was fortunate to begin my career at a time where the clients at our firm had listened to the suggestions of their lawyers and recognized the benefits to themselves in the long run by having new trial lawyers develop and gain experience. I was permitted by the partner at the firm I worked for and by his clients to take cases into the courtroom and try them. To this day, I believe those first two trials that I conducted as a second and third year lawyer was the greatest learning experiences I have had as a trial lawyer. Those are opportunities lawyers in these fields do not get today. It is almost inconceivable today that a national insurance company would permit one of their cases to go into the courtroom and go to trial with a second or third year lawyer as lead counsel.

The problem is that as second and third year lawyers develop and now become six and seven year lawyers, they still have not had any opportunity to get into the courtroom to try a case. It becomes an unbreakable circle. The lawyers do not get permission to try the cases because they don't have sufficient trial experience but they cannot get any trial experience because they do not get to try any cases. This problem is going to become a real issue for insurance carriers within the next 10 to 15 years. The current group of trial lawyers that are routinely used in this area of practice, in our region of the state of Florida, are getting to the point in their careers where they are going to start retiring and leaving the practice. It therefore creates a potential scenario where plaintiffs lawyers are going to experience an unchecked period of success as the most competent and seasoned adversaries that they typically have faced will be gone, and they will find themselves going into the courtroom against people without any actual courtroom experience.

This potential scenario may not be avoidable. Unless more cases in general get tried, there simply is not going to be enough opportunities to develop experienced trial lawyers for there to be a level playing field. There may be no practical way to avoid this. Insurance carriers are unlikely to change their insistence that their senior lawyers try the cases, leaving young lawyers to try and learn by observing without participating. That may be enough. Watching more experienced lawyers try cases may provide enough experience to develop as a trial lawyer. It just seems like there is no way to replicate actually standing in front of a jury and making an argument. The future of litigation in these practice areas will be interesting.

Kenneth Miller is a partner with Haliczer Pettis & Schwamm in Fort Lauderdale. He focuses on medical malpractice, premises liability, personal injury and administrative law.