Oh my God, being in trial is exhausting, but fun.
One of my trial lawyer heroes, David Berg, inscribed a book for me, in part, "Just be ready to announce, "Ready" when the wimps are whispering, "settle." I don't think he could have offered better advice. More than once I have told a judge I was "Ready for trial," and it has immediately led to settlement or an unopposed trial and judgment in my client's favor. As well as the really enjoyable look of shock and confusion on opposing counsel's face.
I've only been practicing 2 1/2 years, but, from what I have seen so far, it is a small minority of attorneys who call themselves "litigators" who actually want to go to trial. I have many theories as to why that is: billing practices, training and experience, and wussiness, just to mention a few.
To some extent, I think the culture of billing, including the pressure to bill lots of hours at obscenely high rates, especially at big firms, makes it too easy to make a living off of pretrial practice, leading so-called litigators to define their job as something other than being a trial lawyer...maybe being a "discovery and motion practice lawyer who is adequate/good at negotiating/forcing settlements." I also think that the other side of exorbitant billing makes it too risky for a client to let a jury decide all or nothing, and as legal fees mount, often because the other side intentionally drives them up through delay tactics and frivolous motions, clients have to make the prudent decision to settle for far less than their case is "worth," because that worth will soon be eclipsed by legal fees which are generally non-recoverable. I'm sure I could think of tons of other ways to tie billing to the decline of the trial lawyer, but that's enough for now.
Another reason that I suspect many litigators rarely set foot in a courtroom is because they simply don't feel comfortable there. The overall law school curriculum does not focus on trial practice. That doesn't mean I would change the curriculum, because I think much of it is valuable as currently designed, and in the last decade (?) or so, I think there has been a dramatic shift towards offering practical classes. I had every opportunity to take practical classes at OSU, and I took advantage of those opportunities. Not everyone did. But they were there, in abundance. I think it's fine that they are not required, because as much as I loved them and would have hated taking a semester-long class on commercial paper, the opposite is true as well, and I am grateful that law school allows students to take those courses they are interested in, as well as certain core requirements. BUT, if a law student thinks he or she may want to be a litigator, it is the student's responsibility to realize a little instruction might be beneficial. Some schools may not offer the comprehensive practical curriculum that OSU does, but there are endless opportunities after law school to seek out such instruction as well. Litigation CLEs are actually fun!
In addition to "training," nothing can take the place of real life experience to feel comfortable in the courtroom. Crazy, but true. At big firms, I know many people who a year or two into practice were just beginning to defend depositions. That is about as far from the courtroom as a litigator can get. But opportunities exist if you seek them out, even in big firms. Someone covers JD exams or motion hearings in remote counties or sits 18th chair behind the firm's few real litigators, so volunteer to be that person. Surprisingly, most people don't want to do those things so a little initiative might turn into a lot of court time.
What always shocks me is that a large percentage of the attorneys I meet at more mundane court appearances act like it is painful to be there and they just want to "resolve" the case as soon as possible and get back to their nice, safe offices. Look around...it's not scary! And your discomfort shows. If you want to set a third pretrial, that does not facilitate settlement. Really. Setting a trial date does. Or it facilitates allowing a judge or jury to decide the case on the merits in a timely manner. Either way - resolved!
Wussiness speaks for itself. We're all afraid of losing. Our clients are counting on us, and nothing is a sure thing. And when you're standing up in court, maybe you're afraid of forgetting something important or maybe you're afraid the judge is going to exclude your most important evidence or maybe you're afraid the jury doesn't like your tie. Get over it or go write wills (no offense intended to those kind of lawyers; they don't pretend to probate lawyers and then go serving a bunch of discovery on dead people...). If you have honestly evaluated the case throughout the process, discussed the risks along the way with your client, and prepared with the idea that trial may be the way the case is ultimately resolved, without the right settlement offer you should end up in court.
I'm not saying don't settle. I agree with the common wisdom that most cases should settle. But unless the economics and the law converge to make settlement the best option, there is no reason to run away from trial. Maybe if more cases went to trial, there would also be more good faith settlement offers.
Okay, I should really stop babbling, because I have to get ready for another day of trial!
