The modern day reality of litigation is that increasing numbers of cases are resolved through settlement prior to trial. Recent national statistics indicate that 98.2% of civil matters are settled before trial. Commentators have referred to this as the “vanishing trial”. The vanishing trial arises from a number of factors, including client pressure to settle in the face of slow and expensive civil litigation and the availability of private alternative dispute services and court mandated settlement programs.
The issue of vanishing trials was the subject of a panel presentation that I moderated at the Philadelphia Bench-Bar Conference held this month in Atlantic City. The distinguished panel included the President Judge of the Superior Court of Pennsylvania and four sitting judges from the United States District Court for the Eastern District of Pennsylvania and the Philadelphia Court of Common Pleas. The panel noted that as a consequence of fewer trials, attorneys have less opportunity to develop and hone critical trial skills. It also means that attorneys must develop an entirely different skill set focused on negotiation and compromise -- skills which are critical to settlement, but not necessarily to trial.
Nevertheless, success in the courtroom will always serve as the measuring stick by which a trial attorney is judged. So what’s a trial attorney to do? The answer was resounding: look for other opportunities to develop trial skills, such as the many reputable court sponsored and agency pro bono programs, and get involved. As the judges noted, there is tremendous need for attorney assistance and these programs often provide attorneys with immediate exposure to the courtroom. The take away from the panel presentation was clear. The opportunity to undertake pro bono work is a "win-win". It provides opportunities to develop trial skills and serves an important function for society which is valued by the courts.