Trial lawyers are losing the ability to try cases, and they need to start fighting back.
So says Vernon Sumwalt, the 2019-2020 President of the North Carolina Advocates for Justice, in an impassioned blogpost that sounds a clarion call for trial advocacy.
“If the hair on your neck stands up or your heart starts to race when I say, ‘Trial lawyers are losing the ability to try cases,’ then good,” the Charlotte lawyer writes on the NCAJ website. “It’s time to fight back. We need the fire in your belly to throw NCAJ into hyperdrive to train new trial lawyers.”
Citing a dramatic decline in civil and criminal trials – and fearing that trials are going “the way of the dinosaur” – Sumwalt points out that the NCAJ used to be called the NCATL, and that the “TL” stood for trial lawyers.
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Here are some highlights from Sumwalt’s blogpost:
- Where have you gone, Spot Mozingo? “U.S. District Court Judge Joseph Anderson’s Where Have You Gone, Spot Mozingo? A Trial Judge’s Lament Over the Demise of the Civil Jury Trial … expressed concern about the decline of civil jury trials almost a decade ago. North Carolina’s own federal bench has said the same about federal criminal trials.”
- Why are trials running the way of the dinosaurs?“Fewer jury trials means fewer juries. Fewer juries means fewer guards left standing on the last line of our Constitutional system of defense, where our Founders put 12 representatives of our communities—the only unelected ones under our Constitution—to protect the shores of justice from the erosion of popularity, power, and indifference.”
- Why is this so? “There are a ton of excuses for this decline: arbitration (and ADR in general), sentencing guidelines, increasing costs of litigation and extensive discovery, inexperience of new lawyers, risk aversion of old lawyers, risks of conviction, dispositive resolutions, the list goes on. Abraham Lincoln, who is said to have tried over 3,000 cases in 25 years as a trial lawyer—about 120 trials a year—didn’t have these obstacles. Neither did most trial lawyers just 30 or 40 years ago.”
- What is the mission of trial lawyers? “We cannot excuse this trend to end trials, or else we will lose our Constitution. What happened? What can we do to fight back? This is the task of trial lawyer groups — NCAJ included —today. To revitalize trial, rebound from this loss, and rebuild our last line of defense for Constitutional integrity. This is our destiny. Who trial lawyers are meant to be. We need you now.”
- What is the NCAJ doing? CLE offering are placing emphasis on practical trial skills, and guest speakers are sharing expertise in litigation tactics. In addition: “NCAJ is test driving its first applications for its new focus group program before we open the doors for everyone’s consumption. Our listservs and moot court participants continue to debrief their experiences and share takeaways, so others can experience the ride as close to a ‘real life’ driver’s seat as they can be.”
- It’s a matter of urgency: “We are building better trial lawyers to try cases like they have nothing to lose, because all we have to lose is time.Because the fear of loss holds us back from being who we are and what we are meant to be. We are trial lawyers.”
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