Honesty is the Best Policy: It's Time to Disclose Lack of Jury Trial Experience

Abstract:     
This article discusses one of the subtle but significant ramifications of the "vanishing jury trial" - the potential injury caused to clients unaware of litigators' diminishing jury trial experience and skills. The empirical research conducted for this article establishes that while clients spanning all levels of sophistication view that lack of experience as important, litigators are not forthcoming with this information. In an attempt to seal off the avenues of escape for lawyers unwilling to disclose their lack of experience or skills, the authors have collected data that not only documents the failure to disclose and confirms that clients assume the litigators have jury trial experience, but also that clients would be unlikely to hire those litigators if informed of the lack of experience. The article substantiates that jury trial skills are important, even when the case is not tried, thereby calling into question the very nature of "informed consent" and the perceived "voluntary" selection of ADR. The authors conclude that a lawyer's failure to disclose in this situation should be considered actionable conduct.

Number of Pages in PDF File: 61

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