White House or to see Rumsfeld to obtain approval
for the deal,” Brosnahan says.
“I told him from the start that John would not plead
to any of the terrorism counts because he had never
fought against American forces and he had never intended to.”
The final deal provided for Lindh to plead guilty
to lesser counts of supplying services to the Taliban,
and carrying a rifle and two grenades. Lindh received
a 20-year prison sentence.
“I still remember the first words John ever spoke to
me: ‘Boy, am I glad to see you.’ ”
Says Brosnahan: “That’s why I became a trial
lawyer.” ■
The Endangered
Trial Lawyer
Beyond the mirth and magic in the stories of trial lawyers still
nimble in the courtroom in the autumns of their careers lies a
worthwhile narrative: How they got there.
Like the burlesque line about the way to Carnegie Hall: It
takes practice, practice, practice. In the courtroom.
That route seems etched in water now as the number of cases
actually going to trial has shrunk to minuscule. In his oft-noted
research on the “vanishing trial,” law professor Marc Galanter of
the University of Wisconsin at Madison detailed a huge drop in
federal civil cases ending during or after trial: 11. 5 percent in
1962, down to 1. 4 percent in 2002. That trend has been most
precipitous since 1985, when the number of trials peaked at
12,529 and accounted for 4. 7 percent of the cases terminated
that year. In 2006, 3,555 civil cases, or 1. 3 percent, went to
trial. And the downtrend is likely to continue apace.
A LOOK AT THE NEW FACE OF LITIGATORS
IN THE AGE OF THE VANISHING TRIAL, HOW CAN THE YOUNG LAWYERS
of today develop the kind of art and skill their elders wield so
well in the courtroom?
Some of the best of the old breed are pessimistic about the
prospects. Others say cowboys with six-guns and lassos are no
longer needed in an age of mechanized cattle ranching.
Some say the jury trial has been usurped by heavy-handed
jurists too determined to reach into questions of fact.
“There won’t be any problem getting the next generation of
litigators,” says Houston-based antitrust litigator David Beck,
co-founder of Beck Redden & Secrest. “The problem is getting
the next generation of trial lawyers.”
When Beck was president of the American College of Trial
Lawyers in 2006-07, he appointed a task force to look at what
can be done to reverse the consequences of the vanishing trial.
Many have heard the stories about litigators making partner
without having tried a case—journeymen carpenters who never
drove a nail. Some retire without ever knowing the visceral taste
of a jury’s verdict.
Criminal lawyers find themselves in much the same predicament. Critics, including judges, say that plea bargains have
become not just de rigueur but bargain basement. Prosecutors
pile charges on defendants who want a trial, such that they face
huge multiples of the sentences meted out to those who plead.
A lot of law firms have adapted by loaning associates to local
prosecutors and to pro bono projects. Law schools have developed a spate of advocacy courses and competitive trial teams.
Students travel the country trying actual fact patterns before
real judges, but their numbers are limited. At William & Mary
Law School, adjunct professor Jeffrey Breit—an accomplished
trial lawyer—says 108 first-year students recently applied for
12 slots in his program.
While the American College of Trial Lawyers and others seek
to restore the tried and true, some believe those efforts are
being overwhelmed by inevitability.
Julie Macfarlane, a law professor at the University of Windsor
in Ontario, Canada, says the new lawyer is still a zealous advocate—just not a warrior. Negotiation is the game.
“These new lawyer roles do not have completely different skills.
They’re still reading the room and the faces,” says Macfarlane,
who authored The New Lawyer: How Settlement Is Transforming
the Practice of Law.
But there are differences, she says. For example, it doesn’t pay
to try to convince everyone of the brilliance of your theory, as it
might in the courtroom. You ply your skills to get the best possible resolution for your client. And rather than hold back a piece
of information that can be used to trap a witness on cross-examination, the new lawyer puts it on the negotiation table.
Just the same, Macfarlane says, “this isn’t about everybody
singing Kumbaya. It’s still about money. It does mean that the
role models for young lawyers and law students are changing.”
—Terry Carter
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THIS LAND IS WHOSE LAND?—COMING IN APRIL.
