Joseph N. Welch , Pattishall, McAuliffe, Newbury, Hilliard & Geraldson , Chicago, Illinois, U.S.A.
Helping young lawyers in a firm become excellent, to rise to the top of their profession, has never been harder. Because of time constraints and business pressures, the old mentor system has broken down. No longer does each partner regularly tutor a particular associate, providing work assignments, performance evaluations and guidance. At the same time, corporate clients, under pressure to cut costs, do not want to pay for an associate's time to learn the ropes. Law firms are put in a bind as they try to satisfy client cost concerns and the demands of today's practice, while still helping associates develop the skills necessary to ensure the firm's future.
This balance is particularly difficult to maintain in a trial practice. Associates need to acquire a wide range of skills. In addition to needing to learn how to analyze problems, work with clients, and market themselves, for example, associates need to learn how to successfully use rules of procedure and evidence, examine witnesses, write and speak persuasively, negotiate, and successfully handle complex cases at the trial and appellate levels.
Various seminar and simulation programs have sprung up to meet these needs, sponsored by national and local bar associations and continuing legal education organizations. For many firms, however, reliance on outside programs to educate associates may not be cost-effective. These programs can be expensive, particularly when travel and lodging are factored in, and they may not be well-tailored to the firm's practice. This is particularly true if your firm, like so many others these days, has a specialized or "niche" practice.
In-house education programs can be the answer. Such programs can be tailored to the firm's practice, drawing upon the experience of firm members and affordable supplemental resources. Many large firms now have hired professional development directors whose sole charge is associate development. Facilities such as video courtrooms are set aside for education. Given the number of associates involved, it may be cost-effective in such firms to essentially bring outside seminar programs inside, along with frequent guest speakers. For small and medium-sized firms, however, running an in-house education program typically will involve some creativity, with a constant eye on the bottom line.
Our firm has 30 lawyers and specializes in intellectual property litigation and counseling. The firm is more than one hundred years old, and as of ten years ago still had a one-on-one mentoring system. The education program consisted at that time of a weekly "case review", in which a different associate each week would lead a discussion of recent federal court decisions. This helped associates develop presentational skills and improve their understanding of legal principles. Taken alone, however, the case review sessions did not meet the associates' educational needs, particularly as partner mentoring diminished. As a result, our firm decided to form an education committee and canvas associates as to the type of program they would like to see implemented.
We quickly learned that aspects of our practice that our partners took for granted were of greater concern to our associates. While associates in our firm typically get substantial responsibility on cases, the day-to-day unpredictability of litigation practice led to some associates acquiring a wide range of experiences while others had gaps in their development. Interestingly, the associates all agreed that we should not completely do away with the old case review format. They instead asked that we intersperse case review sessions with a variety of other types of educational meetings. The number one request was that partners regularly come to speak about aspects of our firm's practice.
In a sense, we saw this as a way to share partner mentoring in a group setting. Our partners were willing to make the time to contribute; the only question was how to organize the program. Obviously, it is difficult for anyone to take time out from a busy schedule to make a presentation. However, like many other firms, our partners are active in professional organizations, publish articles and regularly give talks around the country. As a result, a partner often can convert a previous project into an effective in-house presentation. A speech or article can become a catalyst for discussion. A recent trial or appeal can do the same.
Another format we have used is more informal. We choose a topic, such as the use of expert witnesses in litigation, and ask a partner to lead a meeting on that topic. We then survey the associates before the meeting to compile a list of questions. For an expert witness session, for example, some questions were, "How do you choose an expert witness," "What are some of the most important issues in preparing an expert witness to testify in deposition and at trial?", and "What are some examples of successful and unsuccessful expert testimony?" This made it easier for the partner to prepare, and ensured that these associate questions were fully addressed.
Recent partner presentations in our office have covered nuts and bolts topics such as deposition techniques, discovery of information stored in electronic media, opening statements and closing arguments, cross-examination, the use of experts, writing briefs, and the use of ADR. Recent substantive topics have included software protection, the right of publicity, architectural copyright, and advertising and sweepstakes law. We also have addressed firm administration matters in the meetings, e.g., more efficient use of computers and on-line resources.
The partners, in turn, have requested presentations that would benefit associates. For example, our partners have pushed for more sessions on writing skills than the associates might have elected on their own. We also have had joint presentations by partners and associates. Recently we had a partner serve as moderator while a "panel" of four associates gave presentations on issues that commonly arise in our international practice.
Other members of your local legal community may be willing to give an in-house presentation as friends of the firm or for an affordable amount. Recently, for example, the Director of the Illinois ARDC spoke at our firm about legal ethics issues, and a local professor reviewed legal writing techniques. Former Chief Judge of the Federal Circuit, Howard Markey, came to speak on appellate advocacy. Several times we have had experts come to speak on topics such as designing consumer surveys for litigation and the use of computer animation at trial. Another resource we hope to use in the future is our clients, many of whom speak frequently around the country.
There are many excellent videotapes available from organizations like the ABA and PLI, which address skills such as interviewing clients, taking depositions, cross-examination, etc. We use the tapes as jumping off points for discussion. The ABA tape "Dealing with the S.O.B. Litigator" is a popular videotape that triggered a lot of debate and war stories in our office. A joint venture of the American Lawyer and Courtroom Television Network created a series of hour long tapes which condense high profile televised trials. These can provide riveting examples of successful and disastrous trial tactics. One caveat is that the substantive issues depicted may be far afield from those raised in your firm's practice.
Trial simulations also can be conducted in-house, even without a video courtroom. We recently conducted an in-house mock trial program. We adapted a mock case from a national moot court competition. The associates who volunteered were divided into two opposing firms. Each firm was responsible for preparing deposition witnesses, taking and defending depositions, writing and arguing a pretrial motion, and trying the case. At trial a senior partner served as judge.
Associates benefitted from the experience of running the case from start to finish, and hearing constructive criticism. Partners benefitted from seeing associates in action and discussing points of strategy on the spot. Paralegals helped plan and implement litigation strategy. The one downside was that we found the program too time-consuming for some participants. Next time we expect to streamline the pretrial aspects and place more emphasis on the trial.
Our firm reportedly was one of the first in the country to begin using interactive educational software. Many readers already are aware of the explosive growth of the market for children's interactive educational software, which includes popular programs such as Reader Rabbit, MathBlaster, SimCity and The Oregon Trail. Such programs engage users in entertaining games while teaching basic skills. They allow users to learn at their own pace, and to repeat sequences anytime.
The same principles apply to interactive software for lawyers. By using interactive software lawyers can improve performance by simulating the litigation experience, much as flight simulators are used in the training of pilots.
CLE Group in Menlo Park, California distributes a series of laser disks called The Interactive Courtroom. Developed by the Stanford Law Project, the series currently contains eight disks which permit the viewer to interact in a simulated client meeting, motion argument and trial. It requires a computer, a laser disk player and a television set. We were able to dedicate an old computer to use of the software, and we purchased a laser disk player for less than $400. The relatively small investment was well worth it. Because it is used by a number of people, often with repeat uses, the amortized educational expense has been fairly modest.
Harvard Law School puts out a comparably priced laser disk series which, at last count, had 21 different disks. We sampled that series but found its content (which includes real estate transactions, landlord-tenant disputes and personal injury cases) was not as well-suited to our practice as the Stanford series.
The Stanford series centers around a breach of contract case involving a group of rap music performers called Jumpstreet who are sued by their former recording company. Plaintiff alleges the exclusive right to the group's name and recording services. Defendants claim the contract is ambiguous, and that it is void because of unequal bargaining positions and unreasonable provisions. In the courtroom scenes, the judge, witnesses and opposing counsel are portrayed on the television screen by actors. The user views the ongoing trial on the tv, and interjects objections by pressing any key on the computer keyboard. When the user presses a key, the action stops and the judge responds, frequently by asking for the basis for the objection. The user then may type in the key word on the computer, or select one option from a multiple choice list.
The Interactive Courtroom is impressive for a number of reasons. The actors make the experience realistic, and the user must make decisions with the same time pressures presented by a real trial. The series contains the tactical nuances which are so important in a real trial; e.g. when a technical objection is available, it nonetheless may be inadvisable for tactical reasons. The software has a hypertext feature that not only allows the user to access and read the applicable federal rules and California code sections, but also explains the tactical nuances. In a similar vein, the video periodically stops to allow the user to review the tactics of opposing counsel and explore the reasons they may or may not be advisable. At the end of the program the video will replay the questionable sections the user chose not to object to, ask questions about them and explain the principles involved. All the evidentiary issues raised in the video are then listed, and the user may revisit any of them.
Another very useful piece of interactive software is Objection! by Ashley Lipson, which is distributed by Transmedia, Inc. in Toledo, Ohio. Mr. Lipson is the author of two books on evidence published by Matthew Bender. Objection! is a wonderful and relatively inexpensive program (under $150) that places the viewer in a simple animation of a murder trial. The viewer represents the defendant, and by using letter codes on the keyboard (e.g., H for Hearsay, B for violates the Best Evidence Rule, Q for Proper Question) the viewer either objects as a prosecutor questions witnesses, or indicates the particular question is proper. A quirky sense of humor often surfaces. Faced with a difficult witness, for example, the prosecutor may indulge in a few colorful insults.
Points are awarded for responding quickly and correctly; the quicker, the higher the score. At the end of the witness's testimony questions are asked about its substance. By accruing enough points and answering the post-testimony questions correctly, the user may proceed to the next witness. Success at each level allows the viewer to hear the testimony of five witnesses, with the real murderer identified at the fifth level.
All of this roughly reflects the need to make fast and correct decisions at trial, and to recall the important aspects of a witness's testimony. The program seems to have endless permutations so that the questions, testimony and crucial facts change from use to use. The real culprit also changes. You will be glad to hear, however, that your client is always innocent.
The most recent update of Objection! contains an "Explanation" feature which can be accessed after each question. The application of the rule or principle to the particular question is then explained, with citations. Evidentiary issues are given more comprehensive treatment in Mr. Lipson's well written materials which accompany the software.
A Beta version of a civil Objection! program has just been released. Based on automobile accident lawsuit, it covers documentary, demonstrative and testimonial evidence issues. It appears to match and even surpass the high quality of the original Objection!
Inevitably this kind of program requires a central coordinator. Our office administrator assists in calendaring the events, tracking down information on new resources, making arrangements with outside speakers, and contacting professional organizations. She also makes sure bagels, donuts and the like are available for a morning meeting, or a catered meal at lunch.
Partnership commitment also is essential. Our managing and hiring partners both are integrally involved with the program. All our partners have set aside time to lead educational meetings and otherwise lend assistance. The process itself has added to firm camaraderie and given associate education a needed emphasis among the distractions of our day to day practice.
Investing in associate development is investing in the firm's future. A law firm's single most important asset is the excellence of its lawyers. Any long range plan must address the need to help young lawyers improve themselves.
In-house educational programs help fill that need. Such programs can be cost-effective even for small and medium-sized firms. They also promote firm camaraderie, and recapture some of the benefits of mentoring lost in today's practice.