The last of the 7 habits discussed in the 1989 book by Dr. Stephen R. Covey, The 7 Habits of Highly Effective People is entitled “Sharpening the Saw.” This habit has been summarized as focusing on continuous growth and improvement. Dr. Covey focused on 4 areas of self-renewal: physical, social/emotional, mental, and spiritual. I read the book shortly after its release and think of the concepts on a regular basis. But, not too long ago, I was thinking about a reality we face in the trial consulting world working with trial attorneys – the issue of the diminishing/vanishing/disappearing jury trials. This phenomenon is much discussed in legal circles and we have discussed it at length with some of our clients. For those less familiar with it, this relates to the decrease in actual trials due to the increase in resolving cases in mediation or other alternative dispute resolution environments. There are many ramifications, but one huge ramification is that trial lawyers often have very few opportunities to take a case to trial, and then all the way to the jury verdict at the end of the trial. As a result, their trial skills diminish, get rusty, or dull. Imagine a surgeon who got scrubbed and prepped for surgery only to have the patient get well and not need the surgery, and to have this happen over and over again. How could the surgeon keep sharp for when a patient really needs surgery? How can you have a sharp saw without sharpening it? In law, as in medicine, professionals describe themselves as being in practice. How can they become skilled, or stay skilled, without practice? Dr. Covey was addressing a broader need to sharpen oneself. But in the professional arena in which we work, we observe the dulling of trial skills. If a dull saw is allowed to remain dull, it will not do its job well, or even safely. The user might toss out the saw as a result. For trial lawyers who have few opportunities to sharpen their trial skills, a mock jury is one of the ways to practice their trial presentation skills. This is obviously a plug for our work, but this plug is offered in the context of considering how important it is to stay sharp. That is, it is more than just for the case being considered, but as an overall learning opportunity for lawyers.
It is an irony of modern litigation that “trial lawyers” rarely go to trial. In fact, many of Magnus’ clients, all of whom are trial lawyers, have not had a jury trial in several years. Not only are these attorneys in danger of losing their edge in the courtroom due to an absence of practicing their skills, they risk alienating their clients, many of whom want to hire someone who goes to court, instead of someone who prepares cases for settlement. The issue of the “vanishing jury trial” also has serious ramifications for young and inexperienced attorneys who, because they rarely, if ever, try a case, turn into older, but still inexperienced, attorneys. David and I have encountered numerous attorneys who have been in practice for 10 years or more who have never participated in a trial. Amazing but true! These days, the only way for an attorney to be guaranteed trial experience is by working as an assistant state attorney (prosecutor) or a public defender trying criminal cases such as DUI, robbery, and murder. The impact of the reduction in jury trials on the trial consulting business has been huge. Many attorneys in their 50s and 60s, who used to be the source of most of our business, settle more cases than they try, thereby believing there is no reason to work with a trial consultant. Many up and coming attorneys, who have never had a trial, have never worked with a trial consultant in their entire career and thus, have no way to know what they are missing in the event they finally have a trial. Interestingly, it has always been Magnus’ experience that the most successful attorneys are our best clients. These attorneys know what they know and, perhaps more important, know what they don’t know, such that they understand how our research services help them in a myriad of ways, not limited to trials. These excellent attorneys are the people who want to beat the odds, improve their trial skills, and learn from the mistakes they make during mock trials. Thus, the sharpest saws stay sharp and the dull ones, well, they remain that way.
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