Under Analysis: The last of the trial lawyers

 Spencer Farris, The Levison Group

I heard banging and rustling down the hall in the Levison Towers and went to investigate. Not that banging and rustling are unusual in a law office, but they are usually accompanied by loud voices and occasionally cursing. This time, there was nothing but the sound of deliberate movement, without anger. Or words.

I went down the hall to the trial lawyer’s office. He was packing his things, pulling pictures and awards off the wall and tossing them in boxes. I stood in the doorway for several moments before he noticed me.

The trial lawyer was an old fixture around the law office. Every law office. His job was to go into court and try lawsuits. Period. He didn’t draft contracts, he didn’t do wills. He went to trial. His cousin, the English Barrister, had always gotten more respect than did the American trial lawyer, but if it bothered him, he rarely showed it. Back in his heyday, the trial lawyer was the town’s talk. When he tried a case, which he did almost weekly, the court room would pack with locals eager to see him work. He was a champion for his clients. He was elegant and gritty at once. And from the looks of things, he was quitting.

“Hey there, Spencer,” he said over his shoulder. 

“What gives?” 

“I am done. I quit. Moving on out,” he said, with little emotion.

“What? That is crazy! Why would you give up like that?”

The trial lawyer stopped in his tracks. “I never give up,” he said firmly. “Trial lawyers are done. We are dinosaurs. It is time to move on.”

Since I fancy myself a trial lawyer, this stunned me. Sure, I am lucky to try 3 or 4 cases a year while his annual docket was easily 30 or 40. Still, there are plenty of lawyers of my vintage that consider themselves trial lawyers. As if reading my thoughts, he went on, “You may have a few more years left to practice law. But the age of the trial lawyer is drawing to a close.” I took a seat as he continued. 

“We didn’t become obsolete overnight, and truth be told, we helped do this to ourselves. It started with television advertising in Arizona. Yes, people needed told about their rights and television did that. But it also lowered our esteem in the eyes of the public — potential clients and jurors alike. While some of the ads are needed to combat the onslaught from insurance companies’ poisoning the jury pool and misleading injury victims, most of the ads were nothing more than ‘lawyers’ hucking for business. We started down a path from profession to business folk, and it wounded us.

“The next dagger was casual wear. Not only did it kill the tailor, it hurt our profession. How in the world could we hold ourselves out as professionals when we don’t look professional? Just last week I saw a lawyer in court with a tie, but no jacket. If that had happened to me, I would have been embarrassed, but this lawyer was outraged when I called him on it. There is another lawyer, an old lawyer at that, who struts around the courthouse in a golf shirt. And he does it as though he has good sense! 

“I remember when the presiding judge would have tossed him out on his ear, or at least directed him to step behind the bar until he was dressed like a lawyer. Heck, that same judge let lawyers know that wearing their overcoat in court was unacceptable. I was much younger at the time and a little annoyed by the formality. Now I see that he was only protecting the decorum of the court room, and the trial lawyer profession by extension. 

“Don’t get me wrong, I have left my jacket at home or in the office by mistake. I have shown up to court without a tie after an unfortunate experience with a coffee cup and traffic. But my first words to the judge and my opponent on those days was an apology. 

“Although it is well intended, the Internet has hurt the trial lawyer as much as it has helped us. Yes, I like being able to do research and work from outside my office. But while the Internet has made information more available, it has demystified the profession. Everyone thinks they can try a case now, whether they have a law degree or not. The pro se movement has made the court officers friendlier to help these misguided folks do their own thing, but it has also resulted in lower skill amongst lawyers. 

“Finally, there is a lack of trials. Most cases get mediated, arbitrated, consolidated or amalgamated — rarely do they get tried. There is little need for trial lawyers if there aren’t trials. Most contracts have arbitration clauses. Folks give up their right to pursue negligence claims as a prerequisite to lots of activities.” 

The trial lawyer wasn’t wistful, but deliberate as he turned back to his packing. I took that as my cue to leave.

Gerry Spence, one of the great trial lawyers, says that the trial lawyer is a dying breed, and the trial lawyer in my office tends to agree. We continue to sharpen our skills to serve the clients we have, although we use those skills in trial less frequently. Those of my vintage will continue, largely because we are too young to give up and too old to learn a new skill. Even if society doesn’t, I will miss the trial lawyer. I hope his resignation notice is premature, because his clients still need him.  


Under Analysis is a nationally syndicated column of the Levison Group. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He is proud to be a trial lawyer, even if he is among the last. Comments or criticisms about this column may be sent c/o this newspaper or directly to the Levison Group via email at farris@farrislaw.net.

©2014 Under Analysis LLC