Many law school graduates want to taste the adrenaline of the court room – or at least think they do. In reality, few cases go to trial. This has led to the advent of “discovery litigators.” These attorneys go to depositions and hearings, argue summary judgment motions and attend mediation. Many have little or no trial experience. The dearth of trials has also led to “settlement brokers:” glorified claims adjusters who handle a large volume of cases and settle cheaply with as little time investment as possible, preferably before litigation. They like the trial game, from a distance, but they love the cash flow.
The British have been clearer about who did what in their court system. (Things have gotten more blurred recently.) Clients sought out solicitors: practice area specialists who shepherded the case through investigation and held the client’s hand. Solicitors sought out barristers, whose specialty was the court room. The learning process ensured that barristers mastered the law of evidence, procedure and trial ethics. Solicitors educated barristers on the facts, who then prepared to present those facts in evidence.
There is no such distinction in American practice. Therefore, the roles have evolved to fit practice realities and economics. The problem with that is the client’s best interests are not always served. As mentioned, the settlement broker’s business model is based on HIS return, not necessarily the case’s recovery potential with proper attention. “Discovery litigators” (who never go to trial) have the competence to posture cases for summary judgment, but often miss points that could be hammered home at trial as well as trial themes and facts that could fit into the story-telling of the case. Worse, insurance carriers know that the discovery litigators will blink if trial is threatened.
Unquestionably, there is a place for settlement brokers. There are many smaller cases that should be handled expeditiously. Some simply aren’t worth the client’s fantasy number. Discovery litigators will also have a place in the system, since federal civil litigation practice resolves many cases on summary judgment. But there are many cases, serious injury cases as a prime example, where the client deserves better.
Those who aspire to be true civil trial lawyers must aspire to be like barristers. Insurance companies only respect barristers. They can smell discovery litigators around a corner and settlement brokers a mile away. Conversely, they can’t bluff true trial attorneys.
There is a place for solicitors in a barrister-oriented system. As explained by John Morgan in his book “You Can’t Teach Hungry,” a solicitor can surround himself with or partner with barristers. The best solicitors have the skill set of discovery litigators and case brokers. They also have the foresight to bring a trial technician onto the team. Rather than pretending to be trial lawyers like discovery litigators and case brokers, solicitors have the humility to hand the cases off that deserve to be resolved in the courtroom.
New law graduates considering a litigation career must decide whether they want to be a barrister or solicitor. There is no shame in being a solicitor. A solicitor is the client’s guide through the system – his role is foundational. But if one wants to be a true trial lawyer, in the sense of tasting that courtroom adrenaline, then he must make a commitment to acquiring the skill set and mind set of a barrister.