John Folawn emerges from the courtroom with a childish grin that belies his 59 years, wheeling a big black box of documents behind him. "Well, we won!" he crows.

A meaty settlement for a wealthy client? Nope. A Multnomah County judge declined to pre-emptively rule on Folawn's case. Barring a last-minute settlement, the dispute, involving charges of legal malpractice, will go to trial. For Folawn, the opportunity to try his case in front of a jury is the victory.

Folawn and his partner, George Kirklin, both experienced trial lawyers with quick smiles and hours of war stories to share, left Lane Powell in Portland this spring to start their own practice. Why begin something new in the twilight of their careers? For fun, they'll tell you, exchanging a wry look and tossing off a shrug.

These guys love trying cases, and leaving behind the big law firm life has made them free to do more of it. There are no conflict-of-interest worries ("we can't take that case because we represent the company on real estate transactions"), no team of associates with which to divvy up the work. And the cases Kirklin and Folawn take on have one thing in common: They're all likely to see the inside of a courtroom.

In the world of civil litigation, lawyers like these two are a disappearing breed. They came up at a time when green attorneys were thrown into court in their first week on the job, and they've honed their skills during hundreds of trials. These days, fewer civil cases are getting to court — most are settled, arbitrated or mediated instead — making trial experience tougher to come by.

The shift prompts an urgent question for the legal profession: What happens when the old guard retires to the pleasures of golf courses and grandkids? What happens when lawyers who can handle difficult witnesses, match wits with judges and charm juries aren't around anymore to try cases and teach others?

"I've seen it from the classroom, from the courtroom and from the bench," says Mark Greene, a lawyer with Portland-based Rosenthal and Greene and a judge pro tem in Multnomah County. "Fewer and fewer cases are being tried to a jury, and fewer and fewer lawyers are developing the skills to be a trial lawyer."

Greene explains that lawyers in his age group, which includes the likes of Kirklin and Folawn, are the last with extensive trial experience. Most lawyers younger than, say, 45, don't have it. "Only by trying cases can you learn to be an effective trial lawyer," he says.

Reasons for this shift in the practice of civil law can be traced to the ballot box, changing business contracts, rising legal expenses and an increase in drug-related crime.

But the bottom line is simple: In the future, individuals and businesses with a dispute to settle will have a tougher time finding a seasoned lawyer who can take their case to court, and win.

"THE AVERAGE BUSINESSMAN LOVES HIS OWN LAWYER and hates all the other lawyers," says Bill Carter, a Medford attorney who started his career as a trial lawyer and now specializes in settlements and arbitrations. "He would much prefer to stay out of court. I hear complaints from my business clients that there are no longer any limits to the damages that can be collected" in a jury trial, he continues. Settling out of court is a way of limiting a client's surprise factor.

Nena Cook, who took over the presidency of the Oregon State Bar from Carter this year, is a trial lawyer specializing in complex commercial litigation. But the 39-year-old attorney hasn't had a trial in several years. While she agrees that it's often in her client's best interest to settle — "it's less public and there's more control over the outcome" — she worries about resolving so many civil disputes in the conference room instead of the courtroom.

"It's a concern in our profession," says Cook, a partner with Sussman Shank in Portland. "I'm not sure that the public is aware of the ramifications of this trend. Without a trial you don't have a jury of your peers." To underline the point, she quotes statistics showing that 95% of civil cases settle instead of going to trial.

The Bureau of Justice Statistics, a federal agency, released a study this spring showing that only 3% of civil cases end up in trial; the number of civil cases disposed of by trial in the largest U.S. counties declined from 22,451 cases in 1992 to 11,908 in 2001. And in Multnomah County, the settlement rate is even higher. Of the 22,529 civil cases that were concluded last year, only 1.3%, or 293, ended with a trial.

One reason is the state's mandatory arbitration rules. Established in the late 1980s, these require civil cases with less than $50,000 at stake to be handled by an arbitrator rather than a judge — an option that's thought to be cheaper and quicker than going to court. In addition, many business contracts and employment agreements now come standard with the requirement that disputes be handled by arbitration. While some arbitration decisions can be appealed — meaning they can still end up in court — few actually are.

Settling cases with a judge's assistance has also become a popular approach. U.S. District Court Judge Ann Aiken of Eugene says this method is more likely to make both sides in a dispute happy. "Settlements are more flexible," she says. "In a mediation, people tell their story. They get to be heard."

In Multnomah County, Judge Kristena LaMar has been settling cases exclusively for 18 years, starting out when the county was on the cutting edge of alternative dispute resolution. "Now there are courts all over the country that do what I do," she says.

But LaMar agrees that some cases do need to be tried in front of a jury — cases with larger social implications, cases dealing with fraud, cases that could change the law and cases where neither party will be satisfied without a jury of their peers.

Multnomah County Circuit Court Judge Dale Koch concurs. But he points out that the cases that go to trial are generally more complex than those that are settled. And more complex cases are expensive to try. "The economics don't make much sense for it to happen very often," Koch says. In cases that do go to trial, "for the most part, at least one side has deep pockets."

Protecting litigants from out-of-control legal costs is a key justification for arbitration. But Stephen Walters, a partner at Stoel Rives, warns it could be a fool's paradise. "There's been an infatuation with arbitration," he says. "It's thought of as less expensive, but it's not necessarily so." Walters predicts there may soon be a backlash against arbitration in civil suits, sending more cases back to court.

But would those cases find a courtroom with a vacancy? Probably not. Ballot

Measure 11, passed by Oregon voters in 1994, established mandatory sentencing rules for a list of person-to-person felonies. When budget cuts forced spending cuts on state courts a few years later, such felonies were pushed to the top of the courts' priority list, followed by cases involving drugs, family-law issues and other felonies.

So civil cases remain a low priority for Oregon courtrooms. And while civil trials generally get to court in a more timely manner in Oregon than in some other states, if fewer cases were settled, then court backlogs would likely lengthen quickly across the state.

CRIMINAL LAW IS WHERE THE ACTION IS when it comes to jury trials. Libby Davis, assistant dean for career services at Lewis & Clark Law School, says many of her graduates decide to head for criminal practice first, working in the district attorney's or state prosecutor's office, where trial work is more common, and then transferring to civil work later in their careers.

Eric Waxler, a 36-year-old lawyer with Zipse, Elkins and Mitchell, the Portland-based in-house litigation office of Farmer's Insurance, spent four and a half years with the Multnomah County district attorney's office before moving over to civil practice.

"The courtroom is an intimidating place," Waxler says. "Spending hundreds of hours getting comfortable with the surroundings is extremely valuable. Outside of criminal prosecution and defense, few young attorneys have opportunities to make arguments to judges, much less juries."

The quest for trial experience also leads some young lawyers to pursue pro bono cases. And in the Portland area, young lawyers can enroll in a "D.A.-for-a-day" program through the Multnomah County district attorney's office, which turns cases over to young lawyers hoping to gain trial experience. Larger firms send young lawyers to trial classes and invest in court simulations.

It's not impossible for young lawyers to get comfy in the courtroom; it's just not easy. Troy Bundy, a lawyer with Hoffman Hart and Wagner, has been specializing in malpractice defense since 1994. He tries about four cases per year, roughly 10% of his caseload — the rest settle.

"After 10 years, I'm finally getting to try my own cases," says Bundy, whose firm is known for its trial work. Still, it's a far cry from the nonstop courtroom drama portrayed in the popular media. "I think what's happened is that you have TV shows like Ally McBeal and Boston Legal, and it shows them in trial all the time. That's not the way it is in a civil practice."

TELLING GREEDY LAWYER JOKES and dissing trial lawyers might be a venerable American tradition, but the wood-paneled, flag-studded courtroom with its judge and jury is still a centerpiece of the U.S. justice system. It's in the courtroom that legal precedents are set. While arbitration and settlements are handled quietly behind the scenes, trials are open to scrutiny. And many cases should be scrutinized.

"When the outcome of the case can establish a rule of law, it shouldn't be forced to settle," says George Kirklin, noting that the confidential nature of most settlements has a chilling effect on future legal action. "There are cases where justice really requires a trial in front of a judge."

To make the point, Kirklin, a Baker City native with a Harvard Law degree, reaches back to a case he was involved in decades ago, in which the little guy had a sympathetic claim — but was dead wrong on legal grounds.

The case involved a big tire company — Kirklin's client — and the manager of a small tire store. The manager, who was part-owner of the store along with the tire company, sued the tire company, alleging that it was cheating him of his profits. The case involved complex accounting: The tire company was calculating the store's profit based on the wholesale price of a tire when it left inventory, while the store manager alleged that the profit should be based on the wholesale price at the time the tire entered his inventory. The price difference was potentially significant at time of the case, the late 1970s, when inflation was brisk.

At first, Kirklin felt pretty sure he was on the wrong side of the case. "It looked to me like skullduggery had gone on," he says. But by the time Kirklin stepped into the courtroom he had changed his mind.

The key was to understand the accounting principles behind the company's claims. "I said to the jury that it was true that if the store was selling only one tire, he [the manager] was being cheated out of his profits," Kirklin explains. But since the store was a going concern, it had to replace the tires it sold, and it had to replace them at the current wholesale price. So the real profit to be booked was the difference between the price of a tire when it sold, and the cost of the tire that replaced it in inventory.

"That was the battle line — that you couldn't run a business the way that the plaintiff wanted," Kirklin concludes. "And the jury voted in favor of the defendant."

That decades-old victory — and the legal principle it established on behalf of his corporate client — is one reason Kirklin's still in the game, trying cases, at age 68.

Back at Kirklin Folawn LLP's freshly painted office in downtown Portland, meanwhile, the phone is ringing again. The two seasoned lawyers say they've been surprised by the number of new cases coming their way. Last month they added another former Lane Powell attorney, Bonnie Richardson-Kott, to help handle the workload.

This first hire of a younger attorney represents the beginning of what Kirklin and Folawn want to leave behind when they make their last exit from the courtroom. "By the time we leave," says Folawn, "Bonnie will be a great trial lawyer."

[SIDEBAR]
TRIALS BY THE NUMBERS

• 3% of U.S. civil cases end up in trial
• 1.3% of civil cases in Multnomah County end up in trial
• 2/3 of civil trials involve tort cases (auto accidents, malpractice, product liability, etc.)
• 1/3 of civil trials involve breach of contract allegations and ownership disputes
• 18% of U.S. plaintiff trial winners are awarded more than $250,000 in damages
• 7% of U.S. plaintiff trial winners are awarded $1 million or more in damages

Sources: Bureau of Justice Statistics, study of state trial courts in the nation's 75 largest counties; Oregon State Bar

[SIDEBAR]
BRIEFS FROM THE BLOGOSPHERE

"These days I see lawyers who've written their website profiles to say things like, 'Has chaired 45 jury trials,' and I want to laugh. Yeah, sure, of course you've chaired 45 jury trials — in the 1970s."
— The Uncivil Litigator blog (uncivillitigator.blogspot.com)

"Whenever someone has 'mock trial' listed on their resume, I like to ask them if they enjoy being in a courtroom. Because if the answer is yes, guess what? You're not working here, because you're not going to see a courtroom for years. But if you're on the 'mock document review team,' you've got an offer on the spot."
— Anonymous Lawyer blog (anonymouslawyer.blogspot.com)

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Copyright 2005 Oregon Business magazine