Posted by: johnocunningham | March 9, 2015

Should Lawyers Disclose Their Actual Jury Trial Experience?

For some time now, I have pointed out that most sophisticated corporate clients report that they are very interested in knowing how many trials a lawyer has conducted when hiring an advocate for litigation.

Now, a pair of Texas lawyers has reported that jury trial experience is not only of interest, it is assumed to be part of a litigator’s skill set. They interviewed institutional clients and asked them to estimate the jury trial experience of a five-year litigator at a respectable law firm, and the respondents gave a median estimate of eight trials with the biggest cluster of responses being five trials.

But according to Tracy Walters McCormack and Christopher Bodnar, authors of “Honesty Is the Best Policy” in the March issue of the Texas Bar Journal, only 30 percent of five-year litigators they surveyed had even tried ONE case to a jury. Furthermore, only 8 percent had tried as many as two cases to a jury!

Thus, there is clearly a disconnect between assumed levels of experience and actual experience (perhaps because so many web profiles make every lawyer look like a “super” lawyer).

The Texas authors who did the study called for ethical disclosure of actual jury trial experience, noting that such experience is critical to effective trial preparation, efficient discovery tailored to what is really needed at trial, and the making of accurate jury-value predictions for purposes of settlement and advice to the client.

I believe that legal advocates with significant trial and jury trial experience should also be touting that experience to their clients and prospects. Clearly, with so many litigators at big firms doing nothing more than battling over discovery and settlement, actual trial experience is a marketing differentiator, as well as a critical part of the lawyer’s skill set.

Given the potentially damaging impact of having a lawyer with no trial experience, perhaps the Texas Bar would do well to focus more of its time on ethical rules that require disclosure of relevant experience to clients rather than passing rules about whether a “non-lawyer” can have a chief officer title in a law firm.


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