Civil litigation is a very broad and diverse practice area. Encompassing numerous substantive areas of the law. It can be very stressful. It can be very rewarding. For those who work by the billable hour — the satisfaction of entering tight descriptions for those 0.2s and 0.3s is hard to match. (If “Suits” ever decides to have a reboot, I trust that Harvey Specter’s prompt and accurate time entry will be covered extensively).
But in all seriousness — the most rewarding aspects of civil litigation are often its most challenging and stressful: taking the deposition of the adverse party’s Rule 30(b)(6), dispositive motion practice, oral arguments, jury trials. New and seasoned litigators alike can agree that becoming and staying a strong lawyer requires constant work and attention, especially on these demanding tasks.
From a new-ish civil litigator’s perspective, diving into the proverbial deep end and getting your hands dirty is the best way to hone these skills. People tend to learn by doing. I think I speak for most within my experience cohort that we are constantly in search of greater opportunities to fully immerse ourselves in these challenges. To make mistakes. To learn from them. And to become a better lawyer as a result.
As younger attorneys, let’s embrace this developmental process. And continue to urge our supervisors, mentors and more seasoned colleagues to increase opportunities to experience “real” lawyering firsthand. They were also once in our shoes and recognize the benefit of leading the next generation and future bar leaders. A supportive work environment is critical, and I’m fortunate enough to work at a place that practices what I’m preaching.
Some further thoughts along these lines:
Newer lawyers crave more trial experience. Civil cases very rarely go to trial. Civil litigation is a story of time-consuming discovery, almost always followed by dispositive motion practice and settlement. This is exacerbated in the post-COVID (ish) world, where court dockets are backlogged and trial dates are only available years into the future, which makes the possibility of pretrial settlement even more likely. The days of lawyers trying multiple cases in the same week and having hundreds of jury verdicts under their belt appears to be becoming a vestige of the past.
Newer lawyers are desperate to get more hands-on trial practice. This is my anecdotal and personal experience — that this is a shared eagerness among young attorneys. But the harsh reality is that newer lawyers have less and less opportunity to cut their trial teeth in today’s practice. Where the scarcity of trial work is problematic on its own, the profession would certainly benefit from a broad spectrum of lawyers getting the chance to show off their courtroom skills and become stronger advocates.
There is no substitute for in-person interactions and training. Being in person has immeasurable benefits for the social and substantive areas of practice. In certain respects, the increasing use of videoconferencing has been a silver lining arising from the pandemic. Remote attendance for court status conferences and other routine matters has saved time and expense. But it also has its limits. There is no replacement for the genuine personal and professional connections that are made in person, as opposed to through a computer screen.
In-person interactions make collegiality among the bar more readily apparent, whether it be a networking reception to catch up with former colleagues, new friends, or folks you had only previously known through your email inbox; the organic and genuine interactions in the courthouse halls before, during and after a hearing or conference; or any other type of engagement that cannot be replicated virtually. The in-person experience removes a lot of mystery and illuminates the personalities of the person on the other side of the “v.” It humanizes the practice of law. Meeting or getting to know a lawyer outside the confines of a case makes the actual litigating more agreeable — it’s more difficult to deny an extension request when the person making the request is someone you know personally.
Advocacy skills can also be blunted when practicing remotely. When appearing before the court in a remote proceeding, lawyers are generally sitting at a desk (and sometimes literally on their hands). Not having the experience of being in front of a judge or jury impedes development of those skills. Part of a litigator’s job is to be an effective storyteller. It is hard to tell an effective story when you are not accustomed to being on your feet and moving about the courtroom. With some more experience, I will no longer deal with the plight once faced by legendary racer Ricky Bobby — “I don’t know what to do with my hands.”
Technological advances, at trial and throughout litigation, must be embraced. Because we are living in an age of information overload and short attention spans, litigators and trial lawyers must be prepared to effectively use technology to capture and retain the interest of jurors. A specific example — there is sizable research and literature on the role that Gen Z jurors are playing in reshaping jury pools. If razzle-dazzle PowerPoint presentations and other technologies will do a better job of keeping them engaged and more likely to favor your version of the case, a lawyer is doing a disservice by not incorporating some technological flair into their trial presentation. Also, one has to suspect that a lawyer’s seamless use of trial technology boosts the merits of their case in the eyes of the jury. (If this lawyer has a mastery of the iPad, graphics and other technology, then surely they must be right on the law and the facts).
The presence of generative AI presents another opportunity. AI’s use in legal practice will only increase moving forward. These technologies have the ability to streamline some legal work, including drafting, legal research and image generation. As we have already learned, user beware with the present state of this technology. A lawyer must always verify any AI-produced content before relying on it, especially if you’re going to rely on a nonexistent case within a brief filed with the court. But in any event, newer lawyers are positioned to capitalize on this rapidly developing and changing landscape. Now and moving forward.
Michael P. Dickman is a civil litigator at Kenney & Sams PC. His practice focuses on business, construction, personal injury, and insurance coverage disputes. He represents plaintiffs and defendants in state and federal court. He is on the Board of Directors for the Massachusetts Bar Association’s Young Lawyers Division and chairs its Development and Membership committee, and is a council member of the MBA’s Access to Justice Section.