By Brandon Gee, The Tennessean
NASHVILLE — Lawyers Bob Walker and John Branham remember a time when they would argue multiple trials in a week — if not a day.
These days they're lucky to have more than one trial a year.
The trend of settling disputes through alternative means rather than going through a jury trial has been going on for about two decades and continued last year, according to recently released court statistics.
Avoiding trials saves litigants time and money — a big selling point, particularly for risk-averse businesses in tough economic times. But many lawyers worry that grizzled trial veterans such as Branham and Walker are an endangered species and that the jury trial is vanishing.
Her inability to participate in the trials she loved was a key reason Nancy Jones left Bass Berry & Sims' office in 2007 to lead the Tennessee Board of Professional Responsibility.
"What it really boiled down to is, when you wake up in the morning, and you haven't had a trial in nine years, can you look at yourself in the mirror and call yourself a trial lawyer?" she said.
U.S. District courts had 5,325 civil and criminal jury trials in 2008, down from 6,839 in 2000 and 9,844 in 1990. Tennessee jury trials in state civil courts were down by 1,000 from 2000 to 384.
Todd Campbell, chief judge of the U.S. District Court for the Middle District of Tennessee, said the lack of jury trials is not only a concern for lawyers and firms but also the general public.
"I'm not part of that new-age, touchy-feely, let's-all-hug-and-arbitrate (mindset)," Campbell said. "There's an important social function to people having an open forum to air their grievances in a democracy."
The situation presents a tough challenge for law firms that struggle to get young associates trial experience.
"The paradox is you want to be able to train young lawyers, and having them try cases is the best way," said Darrell Townsend, who defends personal injury, legal malpractice and medical malpractice cases at Howell & Fisher here. "At the same time, you are obligated to serve the best interests of your client, and oftentimes their interests are best served by not going to trial."
Walker said that conducting discovery in a case used to result in hundreds of pages being delivered to the office in boxes, but now he's more likely to get millions of pages on CDs. Both factors cause cases to drag out, costs to go up and settlement to look more attractive.
In the absence of the trial experience that forces lawyers to think on their feet without consulting the library, attorneys will be less prepared to handle those rare cases that do go to trial.
"We take pro bono matters to get lawyers experience," said Bob Mendes president of the Nashville Bar Association.
Kathryn Barnett, managing partner of Lieff Cabraser Heimann & Bernstein here, said lawyers unaccustomed to going to trial are more prone to make mistakes in earlier stages of the process.
"If you don't try cases, then it's difficult to understand the importance of all the steps along the way," she said.
Barnett cut her teeth as a public defender and Jones as a federal prosecutor. Those options still provide opportunities for young lawyers to get trial experience, as do some practice areas such as criminal defense and family law. But Jones noted that many lawyers don't like to work on the heinous criminal cases or messy and discouraging domestic disputes that come with that territory.
"Those opportunities to be in court are going to be there," said Richard Murrell, president-elect of the Tennessee Association of Professional Mediators. "I don't think you're going to see the complete evaporation of the adversarial arena."
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