March 2015 Bar Bulletin
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March 2015 Bar Bulletin

The New Normal: Changes in Litigation Practice over the Years

By Mike Garner

 

When I graduated from law school in 1976, I wanted to try commercial cases. I was able to do a fair amount of trial work before deciding to move away from it. In a 12-month period in the early '80s, I had 13 Superior Court trials. I've been fortunate enough to represent, at trial, Governor Dixie Lee Ray, Ezell's Fried Chicken, and the Hudesman family on the remand of Berg v. Hudesman.

I suspect the percentage of recent law school graduates who wish to practice commercial litigation is roughly the same as it was 40 years ago. But, unfortunately for them, the game has changed and they will have far fewer opportunities to try cases over their careers. The reasons for the changes - the evolution of "trial practice" to "dispute resolution," and the need for new and different skills - all merit discussion.

Fewer Opportunities To Appear in Court

Elimination of Motions Calendars. If you practiced in King County in the 1980s, you recall the "cattle call" motion calendars. Few cases were pre-assigned to individual judges. Instead, every day there were two motion calendars, one for summary judgments and one for all other civil motions.

Young attorneys were encouraged to attend these calendars for two primary reasons. The first was to become familiar with motions practice, scheduling, confirming and coordination, and to see how judges approached and resolved a wide variety of motions. Seeing what worked and what didn't was good on-the-job training.

The other reason was to instill confidence. Many of the attorneys arguing and defending motions were not very good. After a while, one began thinking "Gee, if that guy can do it, I can do it, too. And probably better."

Mandatory Arbitration. It has probably been 25 years since motion calendars were dispensed with, and close to 35 years since mandatory arbitration was implemented. This was a necessary and welcome change.

Judges work long hours, not the 9-to-5 "dream job" some practitioners fantasize about. The court calendars had been substantially backlogged, and it made sense to refer simpler cases with less money in dispute to experienced trial attorneys to arbitrate. The result was quicker resolution and fewer time demands on the judges, their staffs and court administrators.


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