The Trial Lawyer Summer 2018 - Page 63

2. Removing All Penalties For Exercising The Right To Jury Trial If a party loses a jury trial, courts and legislation often impose penalties for such loss, including paying the opposing parties’ attorneys fees and costs. Any penalty imposed after a jury trial that would not be imposed as a result of a settlement of the case is a not-so-subtle infringement of our 7 th Amendment liberty. This applies to any loser-pay system, including the current offer of judgment rules provided for in the federal rules of civil procedure and in most state civil procedure rules or statutes. Further, there should be no additional fee for a litigant to request a trial by jury. In many jurisdictions, including Nevada, a fee is required to request a jury trial. In my view, there should never be any financial cost to exercise a constitutional liberty. 3. Training And Mentoring Programs Experienced trial lawyers have a responsibility to raise the next generation of trial lawyers. As a result of the mentoring I received as a young lawyer from Mitch Cobeaga, Franny Forsman and Rex Jemison, I have been able to achieve the results I have as a trial lawyer. I believe my partner, Dennis Prince, would agree that his successes were launched, in part, because of our mentoring relationship over the years. My first job as a lawyer was with a large defense firm. This was a wise route for any new lawyer that wanted to try cases, because at that time, insurance companies and institutional clients appreciated that to have an ongoing pool of experienced trial lawyers from which to choose to defend their interests, they needed to pay for the legal training of the young lawyers. They understood that for young lawyers to get the appropriate training, they needed to permit their defense firms to have both experienced lawyers and young lawyers attend trials and pay for their time. This provided defense firms with the ability to train and mentor their associates into experienced trial lawyers. Somewhere along the way, insurance companies and institutional clients lost that foresight. Now, they refuse to pay for young, inexperienced lawyers to attend trial with experienced trial lawyers, eliminating their law firms’ ability to train the next generation of defense trial lawyers. Many large firms are not hiring lawyers right out of law school any longer, and instead, are making lateral hires of more experienced lawyers, compounding the problem of young lawyers not gaining any meaningful trial experience. A number of states, including Nevada, have implemented mandatory mentoring programs because more and more new lawyers are not finding jobs with law firms that are able to provide them mentoring. Many new lawyers are being forced to go into private practice on their own (or with other recent graduates) with no experience. This, too, is compounding the problem of young lawyers obtaining trial experience. While these mentoring programs are a good start, they are not providing adequate training for new trial lawyers. The answer may lie in the development of mentoring programs where the lawyer/students are assigned actual cases to litigate with more experienced trial lawyers. Florida has a program of this nature called Lawyers Advising Lawyers (LAL) — formerly SCOPE (Seek Counsel of Professional Experience). LAL provides assistance when a young attorney confronts a problem that is unusual, or when they are in an area of law unfamiliar to them. LAL offers quick access by telephone to an attorney who has experience with and knowledge of the particular problem or area without charge. Expounding upon this mentoring idea, I would suggest trial lawyers allow access to their trials to young, aspiring trial attorneys. A young lawyer might agree to assist in a trial to obtain the otherwise unobtainable trial experience at no out-of-pocket cost to the trial attorney. These cases could be managed at a low cost, if the experienced trial lawyers were willing to spend time teaching and mentoring inexperienced lawyers in exchange for these lawyers providing free legal work in their preparation and trial of cases. I understand the short- term financial burden this places on the young, asp