1 Burger, Warren E., The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Fordham L. Rev. 227 (1973);Kaufman, Irving R., The Court Needs a Friend in Court, 60 A.B.A.J. 175 (1974);Bazelon, David L., The Defective Assistance of Counsel, 42 U. Cin. L. Rev. 1 (1973).Google Scholar

2 Frankel, Marvin E., Curing Lawyers' Incompetence: Primum Non Nocere, 10 Creighton L. Rev. 613 (1977).Google Scholar

3 Dorothy Linder Maddi, Trial Advocacy Competence: The Judicial Perspective, 1978 A.B.F. Res. J. 105; Anthony Partridge & Gordon Bermant, The Quality of Advocacy in the Federal Courts: A Report to the Committee of the Judicial Conference of the United States to Consider Standards for Admission to Practice in the Federal Courts ([Washington, D.C.]: Federal Judicial Center, 1978).Google Scholar

4 The Indiana list includes requirements in credits (semester hours) for the following: administrative law and procedure (3 credits), business organizations (4 credits), civil procedure (6 credits), contracts (4 credits), constitutional law (3 credits), criminal law and procedure (4 credits), equity (3 credits), evidence (3 credits), legal ethics (2 credits), legal research and writing (2 credits), property (8 credits), taxation (4 credits), and torts (4 credits). Rule 13 for Admission to the Bar of Indiana, § V (effective January 1, 1977). The South Carolina list includes business law, civil procedure, commercial law, constitutional law, contracts, criminal law, equity, evidence, legal writing and research, professional responsibility, property, taxation, torts, and trial advocacy (without specifying any course or time requirements). Rules for the Examination and Admission of Persons to Practice Law in South Carolina, S.C. Sup. Ct. R. 5A (effective July 1, 1981).Google Scholar

5 Qualifications for Practice Before the United States Courts in the Second Circuit: Final Report of the Advisory Committee on the Proposed Rules for Admission to Practice, 67 F.R.D. 159, 168 [hereinafter cited as Clare Report].Google Scholar

6 Id. at 169.Google Scholar

7 Walter Gellhorn, Current Trends in Legal Education and the Legal Profession—an Academician's View, 50 St. John's L. Rev. 436, 439 (1976). Gellhorn also speculates that most of the trial lawyers asserted to be incompetent took all or nearly all of the proposed courses. Id.Google Scholar

8 Sovern, Michael I., A Better Prepared Bar—the Wrong Approach, 50 St. John's L. Rev. 473, 473–74 (1976).Google Scholar

9 Cutright, Phillips, Cutright, Karen, & Boshkoff, Douglass G., Course Selection, Student Characteristics and Bar Examination Performance: The Indiana University Law School Experience, 27 J. Legal Ed. 127 (1975).Google Scholar

10 These states are Colorado (45 hours/3 years); Idaho (30 hours/3 years); Iowa (45 hours/3 years); Minnesota (45 hours/3 years); North Dakota (45 hours/3 years); South Carolina (12 hours/1 year); Washington (15 hours/1 year); Wisconsin (15 hours/1 year); Wyoming (45 hours/3 years).Google Scholar

11 Rules of Civil Procedure for Courts of Record in Colorado, Colo. Sup. Ct. R. 260.2.Google Scholar

12 Id.Google Scholar

13 Frankel, supra note 2, at 630.Google Scholar

14 Clare Report, supra note 5, at 188.Google Scholar

15 Final Report of the Committee to Consider Standards for Admission to Practice in the Federal Courts to the Judicial Conference of the United States, 83 F.R.D. 215, 222. The Devitt Committee recommendations are being tested in pilot programs in 14 federal district courts. For example, the proposed rules for practice in the U.S. District Court for the Northern District of Illinois (one of the pilot programs) would require “four ‘qualifying units of trial experience,’ at least two of which are participation units.’” Chicago Daily L. Bull., March 26, 1981, at 5.Google Scholar

16 S.C. Sup. Ct. R. 5B.Google Scholar

17 Id.Google Scholar

18 Deborah A. Bagg, What the Devitt Committee Recommends to Improve Advocacy in Federal Courts, 63 Judicature 309, 318 (1980); Weinstein, Jack B., Proper and Improper Interactions Between Bench and Law School: Law Student Practice, Law Student Clerkships, and Rules for Admission to the Federal Bar, 50 St. John's L. Rev. 441, 454 (1976).Google Scholar

19 Weinstein, supra note 18, at 454; Frankel, supra note 2, at 618.Google Scholar

20 Bagg, supra note 18, at 318–19.Google Scholar

21 Pincus, William, Clinical Training in the Law School: A Challenge and a Primer for the Bar and Bar Admission Authorities, 50 St. John's L. Rev. 479, 485 (1976).Google Scholar

22 Rohan, Patrick J., Legal Education and Training for the Profession—an Overview, 50 St. John's L. Rev. 494, 496 (1976).Google Scholar

23 Bogomolny, Robert L., General Thoughts on Admission to Practice in the Federal Courts of the United States, 27 Cleveland St. L. Rev. 157, 166 (1978).Google Scholar

24 American Law Institute-American Bar Association Committee on Continuing Professional Education, A Model Peer Review System (Discussion Draft, April 15, 1980) [hereinafter cited as Model Peer Review System].Google Scholar

25 See id. at 11. Legal competence is measured by the extent to which an attorney (1) is specifically knowledgeable about the fields of law in which he or she practices, (2) performs the techniques of such practice with skill, (3) manages such practice efficiently, (4) identifies issues beyond his or her competence relevant to the matter undertaken, bringing these to the client's attention, (5) properly prepares and carries through the matter undertaken, and (6) is intellectually, emotionally, and physically capable. Legal incompetence is measured by the extent to which an attorney fails to maintain these qualities.Google Scholar

26 Id. at 32.Google Scholar

27 Id. at 33.Google Scholar

28 Id. at 35.Google Scholar

29 Id. at 39.Google Scholar

30 Id. at 41.Google Scholar

31 Id. at 42.Google Scholar

32 Enchanting Lawyer Competence: ali-aba Confab Faces the Issues, 67 A.B.A.J. 265, 266 (1981).Google Scholar

33 Martyn, Susan R., Lawyer Competence and Lawyer Discipline: Beyond the Bar? 69 Geo. L.J. 705, 729 (1981) (footnote omitted).Google Scholar

34 Lawyer Competence Review Board: A New Concept to Improve Lawyer Performance and Protect the Public, Ore. St. B. Bull., Nov. 1980, at 12.Google Scholar

35 Id. at 14. The Oregon State Bar Association operates the Professional Liability Fund, which provides malpractice insurance coverage of all lawyers in Oregon. Because participation in the fund is mandatory, the fund cannot cancel the coverage of attorneys with poor claims records.Google Scholar

36 Id. at 12.Google Scholar

37 Maddi, supra note 3; Partridge & Bermant, supra note 3; Maddi, Dorothy Linder, Judges' View of Lawyers in Their Courts, 1979 A.B.F. Res. J. 689.Google Scholar

38 For example, although there was considerable agreement among judges surveyed that inadequate preparation was a frequent cause of incompetent advocacy, why advocates came to trial inadequately prepared usually had to be inferred. Maddi, supra note 37, at 691.Google Scholar

39 This study was limited to civil trial work for a variety of reasons. Examining civil and criminal trial work simultaneously would have required enlarging the size of the study substantially. Moreover, the majority of criminal trial work is performed in institutional settings, i.e., prosecutor's offices and public defender offices, and its inclusion would have entailed a detailed examination of the structure of and constraints on these organizations, as well as the work of individual attorneys within them and that of the private criminal defense bar.Google Scholar

40 Rosenthal, Douglas E., Evaluating the Competence of Lawyers, 11 Law & Soc'y Rev. 257, 265 (1976).Google Scholar

41 Letters requesting interviews were sent to 124 randomly selected attorneys. Interviews actually were conducted with 103 of them. Three of these interviews were dropped from the sample for the following reasons: One interview was lost through the malfunctioning of the recording equipment; 1 of the respondents was not practicing law because he had been disbarred; and 1 respondent placed conditions that could not be met on the use of his responses after the interview was completed. Of the remaining 21 attorneys, 7 refused to be interviewed, 5 no longer practiced in Cook County, 4 were temporarily out of town during the interview period, 1 we were unable to obtain any current address or telephone number for, 1 did not respond to appointment messages, and 3 were not needed to fulfill the target sample of 100 interviews. All but 1 of the 100 interviews used were tape recorded verbatim. For the interview with the respondent who would not permit tape recording, the interviewer took notes of the responses on the interview schedule and dictated them immediately after the interview was completed. All interviews were conducted by the same experienced interviewer. Although chosen on the basis of a completed civil jury trial in the Circuit Court of Cook County, 52 of those interviewed had made at least an appearance in the local federal district court in 1976 or 1977. Therefore a separate sample of those practicing before the federal court was not drawn. A few attorneys expressed surprise that their names had been drawn from the circuit court list since they predominantly practiced in federal court.Google Scholar

42 While age was highly correlated with date of admission to the bar, in some cases entry into the legal profession had been delayed by law being a second or third career or more commonly by military service. Only 3 of the respondents had been admitted to the bar before 1940, and another 3 were admitted during the 1940s. During the 1950s, 22 respondents were admitted to the bar, 30 during the 1960s, and 42 were admitted between 1970 and 1977. Of those admitted to the 1970s, all but 10 had been in practice for at least 4 years.Google Scholar

43 Five of the associates reported that the firms they worked for were sole proprietorships, i.e., owned by a single lawyer who employed other lawyers.Google Scholar

44 Partners and associates by size of firm are shown below:Google Scholar

45 The exceptions were those who had very few cases or matters or those who recently had made an inventory of their open files for some purpose of their own, e.g., to check the status of cases in relation to discovery time limitations. For a number of respondents the method of assignment, or more likely nonassignment, of cases within their firms made meaningful responses to this question difficult or impossible. See p. 1065 infra for how work is organized within such firms.Google Scholar

46 General supervisory assignments are not included in these or subsequent estimates. Where a range was given the upper limit was used. Less than 100 matters were reported by 28 respondents; 100 or more but less than 200 by 24; 200 or more but less than 300 by 23; 300 or more but less than 400 by 9; and 400 or more by 9.Google Scholar

47 Thirty-three respondents accepted only plaintiffs' cases, 25 accepted only defendants' cases, and 40 accepted both. Even those who reported accepting both had caseloads that were predominantly one or the other. While some of the respondents were not engaged primarily in civil trial work, the vast majority of them were: 65 reported that all or almost all were civil trial cases, 16 reported that about three-quarters were civil trial cases, 11 reported that about half were civil trial cases, and 5 reported that one-quarter or less of their matters were civil trial cases. During the 12 months preceding the interviews, 94 respondents had started at least one civil bench or jury trial, and 90 had started at least one civil jury trial. (Cases that were settled before verdict but after trial had commenced were included because the preparation for trial was presumed to be the same as if the case had gone to verdict.) Only 11 respondents claimed to have started more than 15 jury trials in the past year, but one of them, with a high-volume personal injury practice, estimated starting 60 trials. The majority of those who had started any jury trials had 4 or fewer starts.Google Scholar

48 This question was not asked of the 3 lawyers who were not in private practice.Google Scholar

49 This group does not include those salaried lawyers who stated the highest fee they had earned for their firms in the past 12 months. Indeed, one of the highest fees was reported by salaried lawyer.Google Scholar

50 The largest single fees in the past 12 months are shown below:Google Scholar

51 The question was not applicable to house counsel who account for the three remaining respondents.Google Scholar

52 Of those not answering, three were house counsel, four did not make such decisions and did not know or indicate how they were made, and one who had just left a firm to set up a solo practice was not asked the question.Google Scholar

53 Forty-one respondents reported referrals from other lawyers as a source of cases. Insurance carriers were a regular, and sometimes exclusive, source of cases for 33 respondents. Other corporate clients provided cases on a regular basis for 33 respondents (including 13 who also serviced insurance carriers). Some of these ongoing lawyer-client relationships precluded making decisions about accepting cases. Twenty-three respondents reported that they accepted all cases from certain clients such as insurance carriers or “permanent” clients (although 11 noted the exception of conflict-of-interest situations).Google Scholar

54 Consideration of whether the lawyer or the firm has the ability or expertise to handle the case was reported by 16 respondents.Google Scholar

55 This may be related to the observation by judges that experienced trial lawyers take on more cases than they can handle adequately. Maddi, supra note 37, at 692.Google Scholar

56 Thirty-eight respondents made some specific reference to economic factors in considering whether to accept a case. Twenty-nine of these respondents were concerned with the profitability of the case, and an additional eight considered the client's ability to pay. The remaining respondent in this group was concerned that the client consider the cost of litigation before becoming involved. On the other hand, nine respondents (including six who had mentioned economic considerations as criteria for accepting cases) reported that they sometimes took cases irrespective of economic factors when they felt someone really needed help or some principle or cause was involved.Google Scholar

57 The outstanding examples of this were respondents who staunchly maintained that they had learned to try cases on their own or through trial and error in spite of the fact that they had previously reported extensive, or at least intensive, training in trial work early in their careers. Whether or not such discrepancies were present, job history responses were examined for all respondents.Google Scholar

58 This includes such statements as, “by trying them,”“by losing,” and “trial and error.”.Google Scholar

59 Two additional respondents claimed that through bad examples they had learned how not to try a case.Google Scholar

60 Other post-law school education was reported by seven additional respondents, ranging from occasional attendance at lectures and seminars to completion of master's degrees.Google Scholar

61 For this analysis, all those admitted to the bar before 1950 are treated as a single group.Google Scholar

62 One of these respondents was the only one in this group who had clerked during law school.Google Scholar

63 Therefore 12 (54 percent of those admitted to the bar during the 1950s) had had mentors or had second-chaired, and 8 (36 percent) had taken trial practice courses either during or after law school.Google Scholar

64 Those who clerked did not necessarily do so in a litigation setting.Google Scholar

65 See note 64 supra.Google Scholar

66 Among 1970s admittees, 55 percent had taken a trial practice course during law school, as compared to 23 percent of 1950s admittees and 27 percent of 1960s admittees.Google Scholar

67 Those who reported mentor relationships or second-chairing but no trial practice courses declined to 21 percent (from 43 percent for 1960s admittees), and those who had taken trial practice courses but had not had a mentor or second-chaired increased to 26 percent (the same level as 1950s admittees).Google Scholar

68 See note 64 supra.Google Scholar

69 It is interesting to note that among all respondents who did not report some form of litigation training a disproportionate number were sole practitioners at the time of the interviews. While 26 percent of the entire sample were in sole practice, 45 percent of the group without litigation training practiced on their own. However, only one of the sole practitioners in this group had always been in sole practice.Google Scholar

70 See note 66 supra.Google Scholar

71 Most respondents had to inspect their diaries or timesheets in order to answer this question.Google Scholar

72 Only 5 respondents had been on trial during at least some part of the previous work day, and two others had presented appellate arguments. Although not on trial, 51 respondents had made some court appearances during the previous work day. The number of trials was probably somewhat depressed by the season of the year in which the interviews were conducted, mid-July to early October, since summer is a time when fewer trials are called.Google Scholar

73 This boastful quote probably does not accurately characterize the outcome of many routine motions. Moreover, the training and preparation of junior firm members for motion practice is quite varied. In one of the large law firms in Chicago, all of the associates in the litigation department spend their first year after being admitted to the bar on a motion team. During the first two weeks they overlap with the prior motion team and are trained by them and one or two senior attorneys who are in charge of the motion team and its ongoing supervision and training.Google Scholar

74 See sections on how respondents get the cases they handle and how they decide whether to accept a case at pp. 1059–60 supra.Google Scholar

75 Five of these respondents reported client control of the time spent on cases (primarily by insurance companies that had assigned the cases to them).Google Scholar

76 Eleven of these respondents emphasized using full procedures, without cutting corners, in all cases. Two additional respondents judged the time demanded by a case in terms of being able to take pride in their performances. Eleven respondents mentioned that they relied on their own experience and judgment in assessing what the case required.Google Scholar

77 Economic considerations also were implied by the three additional respondents who considered severity of the injury or damages.Google Scholar

78 Five additional respondents saw this as an intake decision problem, i.e., whether the case was worth taking. For them, once the case was accepted economic considerations would not affect the time spent on a case.Google Scholar

79 Although this group might have been expected to be defense attorneys, it actually included four defense attorneys, two plaintiffs' attorneys, and one attorney who handled both plaintiffs' and defendants' cases.Google Scholar

80 One of these attorneys suggested that in some cases opponents might be engaging in unnecessary case activities to increase their fees.Google Scholar

81 This question was not asked of 8 of our 100 interviewees, primarily due to interview time constraints. Included among affirmative responses are five who answered “yes and no.”.Google Scholar

82 This respondent described being ready for trial as a state of mind.Google Scholar

83 This probe was used with 36 respondents.Google Scholar

84 Four additional respondents gave less specific scheduling conflict responses which may or may not be related to the trial assignment systems, and eight others cited the uncertainties of the trial assignment system among the most difficult problems they currently have in trying cases.Google Scholar

85 Although most of these complaints were directed at the state court system, some respondents included the federal court as well. At the time of these interviews the local federal court was using a 48-hour trial call for civil actions.Google Scholar

86 It should be noted, however, that while such continuances may grant lawyer A sufficient time to prepare, they may force lawyer B into repetitious preparation.Google Scholar

87 An additional 10 respondents cited witness availability or coordination as among the most difficult problems they currently have in trying cases.Google Scholar

88 Six respondents cited securing medical witness cooperation as among the most difficult problems they currently have in trying cases.Google Scholar

89 See p. 1066 supra. Several other respondents noted the advantage that the defense side has in the latter situation because the plaintiff side presents its case first.Google Scholar

90 For cases on the docket in calendar year 1978, an average of 39.0 months elapsed between date of filing and date of verdict in law jury cases in the Circuit Court of Cook County, while the average for all other counties in Illinois was 25.4 months. Administrative Office of the Illinois Courts, 1978 Annual Report to the Supreme Court of Illinois 165.Google Scholar

91 See pp. 1066–67 supra.Google Scholar

92 Three of them had seen some incompetence at other stages of the litigation process.Google Scholar

93 This question was answered by 87 respondents.Google Scholar

94 The custom of some law firms of giving young associates matters to handle without an opportunity to adequately prepare was cited by three other respondents. See p. 1064 for a description of such a situation.Google Scholar

95 Lack of intelligence or perception was reported by 11 respondents, while another 9 cited personality or intellectual characteristics not suitable to trial work. Two additional respondents cited instances of lawyers who were afraid to go to trial, and three others mentioned a lack of understanding of juries and how to deal with them. An inability to understand or have a proper conception of a case was believed to be a deficiency by 9 respondents, and 13 claimed that the less-than-competent lawyers simply did not know what they were doing or how to try a case. Two other respondents criticized lawyers who do not anticiapte what the opposition will do or what might happen in a case.Google Scholar

96 Among these were laziness, sloppiness, lack of diligence, not caring (15 responses); arrogance, overabrasiveness (4 responses); lack of integrity (3 responses). Two of the respondents who cited greed related this to an unwillingness to refer cases to someone capable of handling them.Google Scholar

97 Of the 54 preparation responses, 29 were not combined with experience or work, while only 7 of the 27 experience responses and 10 of the 28 work responses were not combined with others. It should be noted that these responses may have been combined with others discussed below.Google Scholar

98 Knowledge of the case was mentioned by 13 respondents, knowledge of the law by 9, rules of evidence by 14, and rules of procedure by 3.Google Scholar

99 It seems likely that some of these respondents were equating trial attorney competence with success.Google Scholar

100 Although 11 respondents mentioned being bright, smart, or creative as requirements, 5 others claimed that superintelligence was not required to be a really competent trial lawyer. Four other respondents felt that common sense was the relevant requirement. Liking or wanting to do trial work was identified as an important ingredient in making a trial lawyer really competent by 11 respondents.Google Scholar

101 Various other abilities associated with trial presentation were included in the responses of 16 attorneys. These ranged from the ability to present the client's case in the best possible light to the ability to ask proper questions. The theatrical performance aspects of trial lawyers' work was alluded to by 9 respondents. While 2 of them cast the trial lawyer in the director's role, the remainder emphasized performer qualities.Google Scholar

102 In considering whether to include courage in this group of responses rather than with personal characteristics, I came to the conclusion that these responses were more similar to some of those in the confidence group than those in the personal characteristics group such as flair or charisma. Moreover, courage or fearlessness may be learned.Google Scholar

103 These included dedication, conscientiousness, and thoroughness. Four additional respondents who emphasized the necessity of committing time or putting in long hours might also belong in this group.Google Scholar

104 See note 99 supra.Google Scholar

105 It should be noted that some problem areas are less likely to be associated with really big cases than with smaller ones.Google Scholar

106 Experience without criticism was seen by trial judges in a national survey as possibly detrimental to the development of good advocacy skills. Maddi, supra note 37, at 692.Google Scholar

107 Preparation and experience and training were the most important factors that trial judges in a national survey believed determined the competence of trial advocates. Maddi, supra note 3, at 124.Google Scholar

108 More than half of the respondents attributed fellow litigators' incompetence to inadequate preparation.Google Scholar

109 See pp. 1049–56 supra.Google Scholar

110 See p. 1061 supra.Google Scholar

111 But cf. Bogomolny, supra note 23.Google Scholar

112 See pp. 1054–56 supra.Google Scholar

113 Reese Smith, Wm. Jr., Peer Review: Its Time Has Come, 66 A.B.A.J. 451, 454 (1980).Google Scholar

114 Thomas Church, Jr., Justice Delayed: The Pace of Litigation in Urban Trial Courts 54 (Williamsburg, Va.: National Center for State Courts, 1978).Google Scholar

115 Id.Google Scholar