There is considerable research on what level of effort is required to perform at “master” or “expert” level at a variety of skills. Malcolm Gladwell expounded on this concept in his 2008 book, Outliers. Much of the focus of this research has revolved around becoming expert at a skill like chess or mastering a musical instrument. While there is considerable debate about whether it is a hard rule that 10,000 hours are required to become a master and whether other factors are essential (e.g., innate talent and age when beginning the endeavor), the point remains, practice does improve performance. Whether practice always leads to mastery is perhaps a different question. The point I want to address is that the opportunity for lawyers to practice their trial skills is becoming extremely limited. As I write this, we have just worked with an attorney who has tried 60 civil cases to verdict in the last 15 or 16 years – a record which is on the high side of our client base. That is an average of 4 trials per year. If the trials averaged a week duration, he has had perhaps 2,000 to 4,000 hours (depending on the length of trial and not factoring time spent in trial preparation) in trial in over those years. Most attorneys never come close to having that level of actual trial experience. So, how does one become a trial expert? How does one master courtroom skills in the world in which lawyers practice today? Short of finding ways to get trial experience through pro bono efforts, or experience in high volume practice areas (perhaps as a prosecutor or public defender), it is no longer likely that most attorneys will ever have a high level of trial experience during their careers. This brings me to my admittedly self serving point: it is important to recognize what you don’t know and can’t know, regardless of one’s field. For lawyers, however, there are ways to enhance skills through seminars, continuing education, and, here’s the self serving part, by hiring the expertise of a trial consultant. Conducting mock trials, for example, provides an opportunity for practice. It provides an opportunity for a dress rehearsal. It provides coaching to improve learning. Just as a piano teacher or football coach gives the learner guidance, a trial consultant coaches trial attorneys. Some egos block the required openness to such coaching; we’ve encountered lawyers who did not think they had anything to learn. But, if one is honest with oneself, there is always something to learn. Lawyers must realize that, in today’s world, having enough opportunities to learn it all really don’t exist. Being open to learning and improving through practice and with coaching can only lead to improvements in case specific results and general skills. Finally, it is noteworthy that the majority of our clients over the years are those who are skilled and experienced. These are those attorneys who have learned that they do not, and cannot, know it all.
I don’t know how many hours it takes to gain expertise on something, but I do know expertise cannot be achieved without effort and experience. The characterization of an attorney as a “trial lawyer” is, in my opinion, misplaced unless the attorney has considerable courtroom experience. These days, many attorneys who call themselves “trial lawyers” are more accurately described as litigators or, perhaps more telling, attorneys who settle their clients’ cases without ever going to the courthouse. There is nothing wrong, of course, with settling a lawsuit, thereby avoiding the time and money required to take the case to trial, however, settling cases is vastly different from presenting one’s case to a judge or jury in a courtroom, then waiting for the verdict to be decided. The more an attorney becomes comfortable settling, instead of trying, his/her cases, the less likely he/she will be comfortable inside a courtroom. Magnus’ long time client whom David describes is truly a trial lawyer, as opposed to a lawyer who settles cases. This attorney has more experience in the courtroom than many of Magnus’ other clients, combined. I have heard countless attorneys say they “never” go to court anymore and that, as a result, they are terrified at the mere thought of selecting a jury, arguing their case, examining witnesses, and performing all of the other tasks required in every court case. The more these attorneys avoid going to court, instead, relying on their personal judgment regarding the merits of their clients’ cases, the less likely they are to believe they need the help of an expert, such as myself. Why? Because these trial avoiding attorneys become too comfortable doing a good job on behalf of their clients, while failing to realize they should be doing an excellent job, utilizing every available resource to obtain the best possible outcome for their clients. Courtroom experience is like experience in anything else: it takes practice. And practice comes from repeatedly performing a task until one becomes better and better at it. As a lifelong musician, I cannot imagine calling myself a musician without ever playing a note on my musical instruments. A musician who doesn’t play music and a trial lawyer who doesn’t try cases share one thing in common: they will never be the best person for the job. Enough said!
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