For Trial Lawyers, The Generalist Is The Best Specialist

• Jurisdiction: United States,Federal
• Law Firm: Maslon LLP
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Published date: 24 April 2023

By Justice G. Barry Anderson and Jevon Bindman

This article appeared previously in Bench & Bar.

Almost 50 years ago, Chief Justice of the United States Warren Burger rang the alarm bell regarding the "quality of advocacy in our courts."¹ He argued that the increasing complexities of the legal system required increased specialization, and in particular he called for a specialized unit of trial practitioners.² Chief Justice Burger envisioned a "system whereby students or new graduates who have selected, even tentatively, specialization in trial work can learn its essence under the tutelage of experts, not by trial and error at clients' expense."³ In other words, he believed a lawyer could become a subject matter expert or a trial expert, but not both.

Chief Justice Burger may have foreseen the dramatic shift toward specialization in American legal work over the past two generations, but it has occurred in nearly every legal field except trial practice. And what he may not have foreseen was the equally dramatic decline of trial work in general. As a result, civil litigators are siloed into discrete practice areas, yet are all expected to simultaneously master the skills of presenting their cases to factfinders at trial, despite having little opportunity to develop those skills.

Rather than complain about declining civil trial work or point to some earlier, more propitious time, this article recognizes the current legal landscape and discusses how attorneys can develop trial skills in an increasingly specialized world. Contrary to Chief Justice Burger, in a legal landscape of ultra-specialization coupled with scarcity of trial opportunities, it may well be the generalists who hold the key to unlocking essential trial skills. The authors approach this topic from two different perspectives. One author maintained a general practice for 20 years predominantly in greater Minnesota'with civil trial experience in personal injury, insurance, contract, and mechanic's lien litigation and was certified by the MSBA as a civil trial specialist in the early days of that program'followed by almost 25 years as an appellate court judge hearing cases from across the legal spectrum. The other author practices general commercial litigation with areas of emphasis in construction, insurance coverage, and appeals, and has participated in three jury trials in his seven years of practice. His perspective is looking forward to the coming decades and learning how to develop trial skills that attorneys in prior generations would have routinely acquired.

Attorney specialization: More than a trend?

In a 1984 opinion that disciplined an attorney for (among other things) refusing to handle a criminal matter, the U.S. Court of Appeals for the Eighth Circuit stated that any civil attorney should be capable of conducting a criminal trial, stating that "it is no more difficult to conduct a criminal trial than it is to conduct an intricate 10b-5 securities case or a complicated products-liability case."⁴ This position would be unthinkable today'specialization has resulted in a clear demarcation between criminal and civil practitioners that is virtually uncrossable.

Even within the realm of civil law, an attorney is no longer a "litigator"; instead, she practices "construction law," "employment law," or "products liability," or perhaps subspecialties such as "OSHA compliance," "noncompete and trade secrets," and "medical devices." The trend toward specialization is nothing new'Justice Byron White noted more than 40 years ago the "gradual change in the character of law practice from a generalist skill to an increasingly specialized one," resulting in the "emergence of lawyers regarded and...