What Elena Kagan Tells Us About Judicial Experience
President Obama this morning nominated Elena Kagan to replace Justice John Paul Stevens on the United States Supreme Court. The announcement was hardly a surprise, as Kagan, formerly the Dean of the Harvard Law School, was the odds-on favorite to receive the nomination. Equally predictable is one of the criticisms that will be leveled at Kagan—she would be the only member of the Court without prior judicial experience.
As a client, you are extremely unlikley to have your case heard by the Supreme Court. So you aren't likley to have Kagan resolve your specific dispute. But Kagan's nomination does reveal something important for clients to understand about what judges do. Kagan is likley to be sworn in as our next Supreme Court Justice. But she isn't qualified to serve as a trial court judge—the kind of judge that often generates the cases that the appeallate courts and the Supreme Court decide. Saying that Kagan isn't qualified to be a trial judge isn't a knock on her. My guess is that she would agree with that assessment. After all, she hasn't been in the courtroom. She hasn't represented clients during criminal or civil trials. Many of those who have been appointed either on the state or federal level as trial judges spent years in the courtroom, usually as a prosecutor in criminal trials. Kagan clearly lacks that experience. Moreover, many of the people who are trial judges lack experience in civil disputes; most of their trial experience came in the context of criminal cases.
This fact leads to an ironic situation. I have repeatedly advised that you hire lawyers who have the specific relevant experience that's need to help you reach your primary business or legal objective. If that objective includes prevailing in a civil lawsuit, such as dispute over a contract, that means hiring a lawyer who has a track record of successfully representing clients like you before the judge or judges who will decide your case. The chances are good, however, that the judge in that dispute handled few if any non-criminal cases beore they became a judge. Moreover, if your case were ever appealed, it would be heard by judges who may not have any experience working as a trial judge. Appeallate judges, including those on the Supreme Court level, are often nominated because of their knowledge of the law. Thus, the more pretigous a judge's position tends to be, the higher the chances that they haven't actually been in the courtroom either as a judge or as a trial lawyer. That is an important lesson for clients to understand when they are involved in a lawsuit.
The Crucial Difference Between Trial Lawyers and Litigators
Lawyer marketing often blurs the distinction between trial lawyers and litigators. Both represent clients in non-criminal lawsuits. But there is a big difference between the two. One isn't necessarily better than the other, but if you are hiring someone to represent you in a lawsuit, you need to know the difference.
Litigatos are paper pushers. This isn't an insult or a criticism. That's what they do; thet deal in the world of paper and its electronic counterparts. Beginning with the start of a lawsuit, they draft the documents that are filed with the court. They request documents from the other side. They respond to requests for documents. They write letters to oppsoing counsel indicating that their request for documents is too broad, or that the response to their request for documents was somehow inadequate. Almost all of this involves paper or email in some way. When litigators want the judge to do something for their client, they put these requests in writing. These writings are generally called motions. If they are arguing that the complaint filed at the beginning of the case is defective, litigators file a documnt called a "Motion to Dismiss," which as its name implies, asks the court to dismiss the lawsuit. There are lots and lots of different kind of motions, and litigators refer to this kind of work as "motions practice." The essential day-to-day tools of a litigator are first and foremost a computer with word processing software, email, and a phone. Litigators tend not to leave their offices all that often. From time to time they do need to interview witnesses, review documents where their clients are located, or go to depositions, where they ask relevant witnesses questions under oath or represent the person who is answering those questions. Many of these depositions take place in the offices of one of the lawyers working on the lawsuit.
Trial lawyers, by contrast, actually do the work that you more or less see when lawyers are depicted on televesion. It's the exciting dramtic stuff that you're familiar with. It's the opening statement, the cross-examination of witnesses, the intercation with the judge and waiting for a jury to return its verdict. Televison shows mess up a ton of the details in order to make the story more dramatic. But if you have been watching televion over the last 30 years, it's either been criminal cases or occasionally civil trial lawyers. You almost never see see the work of litigators on televesion; watching people write motions isn't that exciting.
Largely because of television, most people have an incredibly distorted view of how common trials are. Televesion suggests that disputes go to trial all of the time. They don't. In fact, non-criminal trials, like those involving allegations that someone breached a contract, almost never go to trial. More than 90 percent go away before trial. Either the court throws out the case before trial or the case is settled. It's getting harder and harder for civil trials to be scheduled. Because the U.S. Constitution gives certain rights to the accused in criminal cases, those cases are given priority. In big cities it's not uncommon that four out every five court days to be devoted to criminal matters and criminal trials. It can be hard for the court to find the time to schedule a trial in a civil case.
This in turn means that fewer attorneys have much civil trial experience. And that is the crucial difference between litigators and trial lawyers. Don't assume that the lawyer who knows how to write motions or take depositions has much experience handling a civil trial. Such trials are becoming so rare that's possible for litigators to go years without handling an actual trial. Litigators spend so much time in their ofices that appearing before an actual judge causes some of them to suffer from what a friend of mine calls, "The Black Robe Flu." It's the nervousness that results from having to be in an actual courtroom before an actual judge wearing a black robe.
So what does this mean when you are involved in a contract dispute or other potential civil lawsuit and need to hire or work with a lawyer? First, realize that most cases settle and that you therefore need someone who is an experienced litigator. You need someone who knows how to handle all the motion writing that I described above. Second, find out how much actual trial experince your lawyer has, and don't be surprised if it's very little. Third, decide how important it is for your lawyer to have trial experience. Ideally, you want a lawyer who has some good trial experience; when the other side knows that your lawyer has achieved some good results at trial and isn't afraid to take a case to trial, you are more likley to be able to get a decent settlement. And yes, I mean afraid. Remember the Black Robe Flu; many litigators would rather go through root canal without anestisia than face a judge and jury in a trial.
Most of all recognize that litigation and trial lawyers are different. They require different skills. The key skill for a litigator is the ability to write persuasively. Writing ability is generally a lot less important for trial lawyers. Most of the money in a lawsuit is on average spent during the litigation phase. Trials, however, are the single most expensive part of a lawsuit, especially if you paying your lawyers by the hour. These are just some of the differences between trial lawyers and litigators. These differences will be explored more fully in future posts. But you will be miles ahead of most people who hire lawyers if you understand that litigators and trial lawyers are not the same.
Paralegal Dependency Syndrome
Paralegals are the unsung heros of law firms. They do a lot of the day-to-day work that serves clients. They keep files organized, prepare first drafts of documents, and perform hundreds of other tasks that are essential to helping clients. When properly used, they are also cost effective. They do the work that helps lawyers focus on lawyering.
But you can have too much of a good thing. Specifically, beware the lawyer who is overly dependent on paralegals. So what's an overdependent attorney look like? Some lawyers work using a business model where there are five or six paralegals for every lawyer. This is a way to handle a high volume of cases and keep the costs low. This can be an appropriate arrangement, especially where the work that a lawyer does involves filling out lots of standard forms. Many workers' compensation cases fall into this category. There is a huge difference, however, between using paralegals to help prepare forms and using them as substitute lawyers. From the client's point of view, there is often a telltale sign that the lawyer has crossed this line--the lawyer doesn't know the facts of your case inside and out. It's natural that, when cases begin, senior lawyers will know less than paralegals and junior lawyers about what's going on in your particular case. But as important deadlines get closer, a good lawyer will become more and more knowledgable about the details of your case. In some sense, a well-run law office is set up so that the more junior people do the work that enables the more senior person to step in quickly. It's a litle bit like the dental hygenist who spends 30 minutes cleaning your teeth so that the dentist can take five or ten minutes to see that everything is ok.
So what are tell-tale signs that the lawyer is suffering from Paralegal Dependency Syndrome? When they get to a crucial moment in your case--a court hearing, a negotiation--they rely on the paralegal for the facts. The most egregious example I've seen took place in the early 90s, when I was working for a judge. The judge ordered both sides in a lawsuit to show up to provide a sense of where things stood. The judge asked basic questions such as how many witnesses there were, and how many court days would be needed if the case went to trial. The official name for this kind of court appearance is a Status Conference. It is one of the most common and basic events in a non-criminal law suit. And in one particular case, the lawyer couldn't answer any of the judge's questions without looking at the his paralegal who was sitting at the back of he courtroom. After a while it looked like the lawyer couldn't fart without getting approval from the paralegal, and the judge, one of the most even tempered and patient people I've ever met, got impatient. The lawyer looked bad and the lawyer's client suffered as a result.
To be clear, I'm not knocking paralegals. They are indespensable. But there are certain things that lawyers can or should do on your behalf. It's ok for the lawyer to get help. In fact, a lawyer who works with no support staff raises red flgs about how they can represent you adequately. But fewer clients realize that they should be sensitive to the lawyer who seems to be overly reliant on paralegals. If you are getting this feeling, raise this issue directly with the lawyer before the case proceeds too far. The lawyer should have a good explanation as to what the support staff will do and when they will get involved more directly. If the lawyer can't explain this clearly, or more commonly, doesn't do as he or she promises, that is a sign that your lawyer may be sufferring from Paralegal Dependency Syndrome. I'd rather that you make a nuisance of yourself and make sure that you get the lawyer's attention than wait and see whether, when the chips are down, the lawyer will be prepared in time to represent you adequately. This is one of those times in life where it can pay off to be a squeaky wheel. This is when you need to exercise more control over your lawyer. This is an example of when you need to tug on your lawyer's leash.
