President’s Column
takes her skill and uses it as part of a moral
framework. To put it more simply, a good
trial advocate cannot be like Gorgias, she
must understand that each trial, each examination carries moral consequences, and
a lawyer’s efforts will have an impact on a
very real world composed of clients, adversarial parties, perpetrators, and victims. Or
to put it in improv terms, we must be aware
of the space.
Trial Advocacy as the
Defining Feature of Our Profession
Here is the third principle: what makes
us unique as a profession is our role in the
court process. Not only does the public expect us to be good at trying a case—it is
what separates us from the MBAs, the business managers, the policy wonks, and the
administrators. If our role is simply to manage projects, review documents for irregularities, or to contribute an application,
then our days are numbered.
Here is an example. When I first joined
my firm, we, like many others, had a number of cases involving local zoning and
ANR permits connected to wells and septic systems. These cases ranged from parties seeking to block the installation of septic systems to disputes about differing distances of well-shields. There was a lot of litigation work to be had because each town
seemed to have a different standard that
ranged from no standard to overly elaborate systems designed to block development.
In 2007, the state of Vermont adopted
uniform, technical regulations regarding
the siting and construction of septic systems and wells. Our practice in this area
dried up overnight. There are now several
engineers that make a decent living from
shepherding these applications through
the highly technical administrative process.
8
Unless we are assisting a developer on a
large, integrated proposal, we do not even
see the application. Like that, an entire administrative practice was phased out. Now,
this was for the best and was the right
move for the state to make, but it shows
that if we are banking on administrative
work or transactional work to sustain our
profession, we are in danger of losing what
makes us unique, and that unique moral art
that we as lawyers practice, must be sustained, developed, and encouraged across
the profession.
Lessons and Conclusions
So how do we build the next generation
of lawyers and ensure that the art of trial
advocacy remains central to their purpose?
In the past, it was simply a matter of letting them try cases. But with the decreasing numbers of cases going to trial, that
option is disappearing. In 2014, there were
only a 119 jury trials in the state of Vermont. Out of those eighty-eight were criminal, and only thirty-one were civil.3 At least
on the criminal side, this represents a 25%
decline over the past five years.4 It also
means that apart from state’s attorneys,
who might have three or four trials a year,
the rest of the practice may go anywhere
from six months to six years between trials. In the meantime, we are handling cases and settling them, but we are getting
very little chance to hone the skills necessary to not just conduct a trial but conduct
it in an expert manner with a virtue (and I
mean that word in the ancient Greek sense
as a synonym for excellence) equal to the
obligation.
In all modesty, I would like to recommend the following four points to you:
1. We must, as a profession, encourage trial work.
THE VERMONT BAR JOURNAL • SUMMER 2015
Too often, we hear young at ѽɹ