Jottings By An Employer's Lawyer

Friday, July 01, 2005

Lawyers and the Vanishing Trial - I Couldn't Have Said It Better


The spring edition of the ABA Labor and Employment Law newsletter has a great article (p. 6), Lawyers and the Vanishing Trial by Felix J. Springer, a partner at Day, Berry & Howard in Hartford, Connecticut. All involved in employment law should read it.

Among the points that Springer (who I don't know) makes:

I view my two dozen jury trials in employment cases as the highlights of my career. Those trials, and appeals from them, provided a continuing education about what truly matters in employment cases, what needs to go right and what can go wrong. I am grateful for clients who had the principles and wherewithal to try cases.

The lawyers I have encountered who have not tried cases typically do not know what does matter— either procedurally or substantively—and clients suffer... They [lawyers who have not tried cases] often do not trust themselves and fight about too much that is inconsequential, increasing costs and aggravation.

The increased pressure to resolve cases by all involved, when taken to its extreme is based on "the argument that all claims have some value because they derive from some untested perception that a wrong was committed. To be sure, many cases should be settled. But let’s not make a cult of ADR and believe all of them should."

Finally, "With employment trials now a rarity, we honor the perception of the litigants too much rather than test those perceptions in a way that forces us all to be accountable for our actions." But that call to accountability is in no way limited, as he makes clear it covers: "employees for the actions they took, management for the decisions they made, and lawyers for the themes and strategies they chose and the skills they bring to bear." (my emphasis)

Sometimes, less often than we would wish, someone is able to articulate a point of view that is important and does so in an eloquent and insightful manner. This is one of those times.


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