By Kathleen Balthrop Havener and Paul Tarr

The civil jury trial is disappearing. Despite public and legislative ballyhoo about "out-of-control" jury awards, juries in fact have fewer opportunities to decide cases at all. This change - the result of an evolution in the practice of law - has dramatically altered the set of skills that a successful litigator needs. These skills are not necessarily those of a top-tier trial lawyer with years of courtroom experience. So why do clients and law firms continue to seek and hire the best trial lawyer they can find? Shouldn't they be looking for a litigator who understands and focuses on how legal disputes are really resolved?

The disappearance of the civil jury trial is well documented. The "Vanishing Trial" project - the largest single initiative ever funded by the American Bar Association's Section of Litigation - found that despite a fivefold increase in the number of federal civil suits filed from 1962 to 2002, district courts conducted 1,200 more civil jury trials in 1962 than they did in 2002 ["Courtroom Nostalgia," February 2004]. In 1962 one in every six tort cases went to trial. By 2002 the proportion was one in 46, or 1.8 percent of federal civil cases. The same pattern is evident at the state level. According to the National Center for State Courts, in those jurisdictions for which data was available, only 0.6 percent of civil cases ended in a jury verdict.

Whether this is good for the judicial system is a matter of opinion. Our point is more practical: In light of this change, clients and firms should stop measuring the value of litigators by the number of jury trials they have successfully brought to verdict. That test is anachronistic - and for clients, expensive.

We believe that clients and firms should opt instead for a different sort of litigator: one who, when presented with a new case, is moved first to learn everything possible about what actually happened - how the dispute arose and how it might best be resolved, in or out of court. How the facts might play to a jury is a secondary consideration. This is the sort of lawyer who enjoys being closeted in a roomful of documents and looks forward to deposing enough witnesses to uncover the key facts underlying complex circumstances. This lawyer takes pride in knowing the documents backward and forward, and can retrieve any one at a moment's notice.

To seasoned trial lawyers, this may seem appallingly dull. Why become a litigator just to do data management? The answer, of course, is to serve client needs. It is no secret that liberal discovery rules make it both inefficient and expensive to take cases to trial.

Clients want to win. But they may define winning differently than old-school litigators. Clients are less interested in courtroom glory than in cost-effective, facesaving solutions to potentially unpleasant problems. They want to protect their intangible assets, such as corporate reputation and market share, as much as they want to vindicate their rights. If they can achieve these goals without spending a dollar on voir dire, so much the better. For this, clients need litigators who are problem-solvers. These lawyers know their client's business, its history and likely future, and the larger forces in the market and the media that shape its business prospects. They can manage both a suit and the issues surrounding it, are cautious with other people's money, and stay on the lookout for quick, creative solutions. In short, they are counsel whose main selling point is the ability to think creatively.

Even great trial lawyers can lose by winning. Due to the length and cost of going to trial, and the impact of uncertainty on the market, a publicly held client may win every court battle and still lose reputation and market share. Instead, "winning" must be broadly defined to involve the full scope of a client's legal position, long-term business objectives, and reputation. Sometimes it involves winning through tactics that an old-school litigator would recommend against. They include concerted efforts to engage the public, and to volunteer information before it is leaked by insiders, extracted by reporters, or made public through discovery. Perhaps most important, it often involves encouraging the client to acknowledge responsibility to stakeholders.

Ten years ago, in a Cardozo Law Review article, then - Fried, Frank, Harris, Shriver & Jacobson partner Harvey Pitt and his coauthor, Karl Groskaufmanis, also of Fried, Frank, cautioned against lawyers who were reluctant to confront the extralegal nature of legal problems. In their view, litigators tended to overlook the fact that "preservation of a company's credibility - and perhaps even its survival in the marketplace - often will turn on the company's capacity to tell the truth, admit fault, and make amends - actions which do not fit the mold of our adversarial system. . . . As difficult as it may seem, there are times when business considerations should outweigh the legal waivers involved." Years ago, one of us was part of a team that advised a grocery store chain that had been accused of violating the Americans with Disabilities Act. The chain could have embarked upon a scorched-earth strategy to fight the act's provisions. But did it really want to be known as the corporation that consciously excluded wheelchair users and fought for the right to do so? The wiser counsel was to advise the chain to get its stores into compliance with the act. Rather than risk becoming a victorious but publicly reviled corporate bully, it turned a potential public relations problem into an opportunity to reposition itself as honest, transparent, law-abiding, forward-thinking, and humane. Lawyers who can achieve results like these are far more effective and valuable to clients than the best trial lawyers.

If present trends continue, experienced trial lawyers will be an elite but increasingly irrelevant group. With fewer than 2 percent of federal civil cases reaching a jury, clients are wasting time and money when they look high and low for the next Clarence Darrow. Litigation has changed. Now it's time for the profession's decision makers to similarly change their time-worn notions of what makes a great litigator.

What Clients Really Need

The changing litigation landscape makes these traits especially important:

• Analysis, creativity, and advocacy skills - especially in writing
• Big-case management
• Real-world experience
• Understanding the client's business
• Understanding the client's extralegal objectives
• Public relations savvy and media relations skills
• Awareness of the court of public opinion
• Cost-effective discovery and document management
• Team building - both within the firm and among multiple firms
• Frequent communication with client
• Understanding the costs of litigation and controlling them

- K.B.H. AND P.T.

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Kathleen Balthrop Havener is a complex commercial litigation partner in Cleveland's Hahn, Loeser & Parks. Paul Tarr is a New York - based lawyer and member of Sitrick and Company, a strategic communications firm. E-mail: kbhavener@hahnlaw.com ; paul_tarr@sitrick.com .


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