3. We must educate the public about the
role of trials to resolve disputes.
There is a fear of trial work. I think most
people mistake what occurs in a trial or the
stakes of such a trial. They think it is a bombastic engagement in which the outcome
hinges upon a single fact, and they fear
that outcome. As lawyers we tend to stoke
that fear, but we do it at our own peril. We
must re-commit ourselves to working with
clients and the public to instruct them on
what trial work really is. As a defendant in a
recent small claims court case that I was involved in blurted out after the plaintiff had
put on his case in a clear and emotionally
effective manner: “This is just great! This is
what America is all about, and I am really
happy to be a part of it.”
4. We must embrace the role of performance and storytelling.
The great joy and fun in trial work comes
from embracing the performance aspect
and storytelling function of trial work. It
is what our clients want at the end of the
day—to tell their story (through testimony and evidence) and to tell it in a manner where our role enhances the process,
brings the narrative to life, and gives the
jury the best view possible of our clients
and their position. The only way we can do
this in a consistent and effective manner is
to adopt the training that help us be better
performers—which is to say advocates and
communicators who can relay the trial data
points to lay jurors and the public in a way
that is honest and compliant with our moral
art of trial advocacy. To that I encourage all
of us to expand our horizons.
In making these recommendations and
elevating the trial advocate, I do not mean
to short the other roles we play in mediations, transactions, and legal counseling.
These functions remain critical and equal
parts to our identities as attorneys-at-law.
Like trial advocacy, these other faces of
the profession require skills that are hard
to teach in an academic environment and
should receive more focus and training.
Yet, none of these other roles occupy the
same central public image of the lawyer as
the trial advocate does. (Unless, of course,
CBS’ new drama The Scriveners gets green
lighted for the fall season.6) None are the
exclusive domain of the licensed attorney.
Business schools teach risk management
www.vtbar.org
and regulatory compliance. Experienced
lay people draft agreements and legal documents on a daily basis. And non-lawyer
mediators are a vibrant part of the alternative dispute resolution community. This is
not to say that general counsels, transactional attorneys, and lawyer–mediators do
not bring integral skills to their fields or are
at risk of being usurped. But as technology expands, technical fields become more
specialized, and businesses become more
sophisticated, the line demarcating legal
work will blur. It has already begun.
That is why we must, at the end of the
day, remain focused as a profession on our
unique role as officers of the court and advocates before the judiciary. In doing so,
we are called not only to retain the skills
and values of trial attorneys, but to pass
this knowledge to the next generation. By
keeping trial work a strong and central part
of the profession we do the greatest service for our clients today and to our heirs
and assigns by leaving them an active and
vibrant profession on which they may continue.
____________________
Daniel P. Richardson, Esq., is a partner in
the Montpelier firm Tarrant, Gillies & Richardson and president of the Vermont Bar
Association.
____________________
President’s Column
opportunity for improvement in legal
preparation will be found where the
practicing legal profession is most vulnerable on the score of performance.
This, I believe, is in the work of the trial
courtroom. It seems to me that, while
the scholarship of the bar has been improving, the art of advocacy has been
declining.5
Hon. Robert H. Jackson, Training the Trial
Lawyer: A Neglected Area of Legal Education,
address at dedication of the new Stanford Law
School building, July 15, 1950, at http://www.
roberthjackson.org/files/theman/speechesarticles/files/training-the-trial-lawyer;-aneglected-area-of-legal-education.pdf.
2
Plato, Gorgias, in The Collected Dialogues at
229—307 (ed. Edith H