So you want to be a “trial lawyer.” Don’t we all?
The paradox of modern complex litigation is that the cases we dream of trying almost never get tried — and the smaller cases that once trained generations of trial lawyers are rarely handled at large firms anymore.
The truth is that there are fewer trials now overall, which means there are fewer lawyers trying cases across the board. It can be tempting to look to leave the firm you have built your reputation at for seemingly greener grass. I know many young litigators who are five or six years into their career, yet they could count the number of depositions they have taken on one hand. But I know even more who joined a big firm, were frustrated by the lack of experience and departed, only to find out that the “trial” firm they moved to was no trial firm at all.
As a result, I recommend resisting the urge to ask, “Where should I go?” Try asking, “What else can I do?” That question has one uncomfortable but effective answer — take responsibility for building your own trial experience.
Four pro bono cases have completely reshaped my career and the type of responsibility I am given on my cases at the firm. These were unseemly cases no one else wanted. My pro bono clients were accused of pimping, human trafficking and assaulting a federal officer. A couple had questionable immigration status. Multiple faced allegations of gang affiliation, and one had an inexplicable amount of cash (that we were trying to get back) and no traceable income. Each of these cases required dozens, if not hundreds, of hours on nights and weekends after the Big Law day was done.
The point is that these cases required getting down into the unglorified mud. But the reward was worth it — not for the credit or flash, but for the substantive trial and courtroom experience. The more commonly followed alternative is to churn away on billion-dollar lawsuits with your billable hours and take on the occasional flashy amicus brief pro bono (that everyone wants a piece of, and that you have no chance of arguing).
There is nothing wrong with that path. It is a common misconception that Big Law firms do not provide quality training. I could not disagree more. Big Law firms and sophisticated boutiques teach you how to pay attention to detail. They provide you with the most complex work and access to incredibly talented mentors.
But if you do only that, and you take on no (or only high-profile) pro bono work, how is the partner going to respond when the client asks him if you are really ready for the argument, deposition or witness he has slated you for? As one famous East Texas trial lawyer told me early in my career, “I know how it goes. You can’t get the trials unless you have the experience, and you can’t get the experience without the trials. It’s a vicious cycle.”
You do not have to fall victim to that cycle. If you are on the Dallas Volunteer Attorney Program email list, every week you are presented with trial opportunities. That’s how I got my first, which was in a justice of the peace court. Next came three wild federal pro bono cases, resulting in a Fifth Circuit argument (and a front-page story in the Dallas Morning News), a federal jury trial and a plea with the jury in the box. I did not expect it, but these became the sources of my best stories and the most fun cases of my legal career.
Now, when work at the firm comes up in the courthouses where these cases took place, I get a call. When big depositions or important injunctions get set, the partner trusts me to handle them. And when trials do appear likely, there is no question about whether I am ready.
I have lost hundreds of nights of sleep over how difficult it is to get trial experience these days — I still do. But the next generation of trial lawyers is not going to be expected to have tried dozens of cases by the time they make partner. Clients choose us among our peers, and in 20 years, there are only going to be so many complex litigators who have tried cases at all. You can control whether you will be the choice in that competitive landscape.
In order to do so, if you want to stay in complex litigation and avoid resenting your lack of experience, I believe you must get experience through pro bono work or other small unprofitable cases. It is fulfilling. It is fun. And it might even pay off in the long run.
H. Preston Glasscock is a senior associate at Norton Rose Fulbright and the president of the Federal Bar Association’s Dallas Chapter. He can be reached at preston.glasscock@nortonrosefulbright.com.
Publisher’s Note: This article was originally published in the June issue of DBA Headnotes.