TBA Law Blog

Posted by: William Haltom on Mar 31, 2009

Journal Issue Date: Mar 2008

Journal Name: March 2008 - Vol. 44, No. 3

I've been a trial lawyer now for 30 years, and I realize I'm going the way of the dinosaur. Trial lawyers should be placed on the endangered species list. We crusty old geezers who love to stand before juries and speak up on behalf of our clients are being replaced by litigators, mediators, conflict resolution facilitators, and holistic creative alternative dispute resolution consultants.

We should probably add trial court judges to the endangered species list as well. These days, an increasing number of trial court judges don't seem to want to try cases, which is curious since I always thought that's what we pay them to do. Instead of trials, this new breed of judges holds an endless series of "status conferences" and enter "Scheduling Orders" setting deadlines for amending pleadings, propounding interrogatories, making mandatory disclosures, making permissive disclosures, filing motions, producing documents, having documents bates-stamped and cross-referenced, inspecting premises, certifying classes, designating experts, deposing experts, conducting independent medical examinations, taking video depositions, taking audio depositions, severing claims, dangling participles, hanging chads, and engaging in every conceivable activity other than actually trying the case.

After a series of such conferences and the generation of enough paper to destroy the Amazon rain forest, the judge will then order mediation. At this point all the parties and their lawyers will be forced to sit together, packed in a small conference room, and listen to a "Rule 31 mediator" lecture them about how terrible trials are, how only an idiot would take a case to trial, and "how nobody ever wins at trial," even though if there's one thing that anyone who has actually tried a case can tell you, someone in fact does win at trial. (It's like what Mark Twain said when he was asked if he believed in infant baptism. "Believe in it, hell!" he replied. "I've seen it done.")

The mediator will then smile and say, "We just all need to work together and come up with a win-win solution." The parties and their counsel will then be required to join hands and sing Kum Ba Ya.

If the case doesn't settle at mediation, the mediator will file a report with the judge stating that the lawyers were very bad, did not play well together, and need to be sent to their rooms without dinner. The judge will then hold another status conference where he will admonish the lawyers for not settling the case and will order them to return to mediation.

This process will go on for several years, until the parties and their counsel all (a) die, (b) go bankrupt, or (c) just say, "To hell with it, we quit."

Every once in a while, during one these status conferences, I will muster up my courage and say, "Your Honor, I don't mean to offend you, and I hope you're not going to hold me in contempt for saying this, but my client would like ... um, er, hmm ... gosh, there's just no nice way to put this ... my client would like ... a trial!"

When I say this, the judge will look at me as if I had just challenged my opponent to a duel and asked him to serve as my second.

I'm convinced that if I practice law long enough, I will see the day when every lawyer in Tennessee will work for the Baker Donelson firm as part of their mediation group. All litigants will be required to execute conflict waiver forms and expressly agree to waive their right to trial and submit to binding arbitration, even though if you have been through one, you can attest to the fact that nothing is more painful than binding arbitration.

But before this happens, I hope there will be one last jury trial. We can hold it in one of those fake courtrooms that inexplicably you find in the litigation departments of large law firms. (Question for my colleagues who are "litigators" at big firms: What in the world do you use those fake courtrooms for, anyway?) Since by the time we hold the last jury trial there will be no more judges who know how to conduct a trial, we can bring in a TV judge, like Judge Joe Brown, to try the case. He will empanel a fake jury, and then we'll let a couple of old dinosaur trial lawyers like Jim Neal and Donnie Paine fight it out like Clarence Darrow and William Jennings Bryan did in Dayton 80 years ago. We'll film the trial for posterity, put the film on a DVD, and then bury the DVD in a time capsule at the battlefield at Shiloh. And over the burial site, we will erect a historic marker that reads: "Here lies the last Tennessee jury trial."

And centuries from now, when a new civilization is emerging from the floods of global warming or the ashes of a nuclear holocaust, someone may unearth the time capsule, open it, observe its contents, and say, "Wow! What a creative way to resolve conflicts!"  

Bill Haltom BILL HALTOM is a partner with the Memphis firm of Thomason, Hendrix, Harvey, Johnson & Mitchell. He is past president of the Tennessee Bar Association and is a past president of the Memphis Bar Association.