Dean's Address

Lawyers in this country have always clothed themselves with a sort of de facto specialization. Professor joiner of the University of Michigan observed 30 years ago: "[A]nybody can be a specialist. All he has to do is to say 'I am a specialist in some field of law' He doesn't have to know anything about that field .... Other lawyers and the public have no way of knowing whether or not he knows anything about that field."²⁵ Professor joiner's remarks bring to mind Mark Twain's warning that: “ It ain’t what a man don't know that hurts. It's what he knows that ain't so."

The indiscriminate and unverifiable claims of specialization described by Professor joiner influenced authentic specialists to form their own organizations that limited membership to persons of similar qualifications. These organizations established a de facto recognition of specialty in particular fields of practice that could be advertised within the bar and in approved legal directories, but not to the public.²⁶

Four such organizations in the field of trial advocacy are, in the order of their birth, the American College of Trial Lawyers (1950), our International Academy (1954), the American Board of Trial Advocates (1958), and the International Society of Barristers (1975). As the names of these organizations signify, they were formed specifically to promote and enhance trial advocacy. They admit to membership a limited number of lawyers, from both sides of the counsel table, who have demonstrated superior skill and recognized ability as trial lawyers. For convenience, I will refer to them as the "prestigious organizations."

As far back as 1954, the ABA recognized that certification of trial specialists on a national basis was a need whose time had come. A committee was appointed to survey the matter. It recommended a plan, but that plan met with opposition and no action was taken.²⁷ In 1961, another committee drafted a plan. It, too, met with opposition and no action was taken on it.²⁸ Still another committee was appointed in 1967; this time it was called a special committee. After much deliberation, it recommended that the ABA wait for the results of pilot programs submitted to the bars of a few states .²⁹ Two years later, the special committee was dissolved, and recognition of trial advocates on a national level lay dormant. Chief Justice Burger attempted to awaken it in these words:

"[S]ome system of certification for trial advocates is an imperative and a long overdue step.

[W]e are more casual about qualifying the people we allow to act as advocates in the courtroom than we are about licensing our electricians.

[And], there is no parallel in any other area of life's problems having serious consequences to our naive assumption that every graduate of a law school is, by virtue of that fact, qualified for the ultimate confrontation in a courtroom."³⁰

If the Chief justice was calling upon the ABA to take the "imperative and long overdue step" of certification of trial advocates, his call was not heard.

Having abdicated its responsibility for specialty recognition on a national basis, the ABA created the Standing Committee on Specialization to offer guidance to the states.³¹ This committee formulated a Model Plan that has two idealistic goals: (1) To increase access of the general public to qualified legal assistance; and (2) to improve the quality of specialized legal services by improving the skills of those who offer such services to the public. These goals are referred to as "access" and "competence."³²

Consistent with the provisions of post‑Bates codes of ethics adopted by the ABA, the Model Plan calls for the supreme court of each state to establish a board of legal specialization with jurisdiction over all matters pertaining to the recognition and regulation of specialists.³³ The Plan sets out general minimum standards and leaves to the states the discretion to adopt more or less stringent ones.³⁴ Grandfathering is vigorously opposed.³⁵ The Special Committee lists 24 areas of practice concerning which it intends to publish guides specifically tailored to each.³⁶ Those of most concern to the members of the Academy are "Criminal Law," "Civil Trial Practice," and "Personal Injury and Property Damage" No guides have been formulated in any of these areas.

The Standing Committee is entitled to all praise for its valiant attempt to do what was predestined to fail and fail it has. When its parent was unable for 30 years to formulate an acceptable certification plan for trial advocates, perhaps too much has been asked of this committee.

For each state to adopt standards for specialty recognition is not an easy task. Hard choices need to be made between sharply conflicting interests if the goals of access and competence are to be met. If standards are tilted too far towards access, they are opposed by those who would emphasize competence, and vice‑versa.

Almost every qualification an applicant must meet invites disagreement. For example, what percent of an applicant's practice in a given field, and over how many years, should be required? How much and what kind of continuing legal education is required of an applicant both before and during the period of certification? Of course, different standards need to be tailored for each specialty.³⁷

It is no wonder that so many state boards are overwhelmed and bogged down in disagreement and inertia. Some boards have given up when their recommendations have been rejected. In quite a few states, their boards have been dormant for years.³⁸ In others, the board has been dissolved. A few states have a plan under submission, but the prospects of it being adopted are dim. The supreme courts and bar associations in a number of states believe there are too few lawyers in their states to justify the cost. In 1982, the Florida designation plan cost $112,000; California's certification plan for 4 specialties ran to $265,000.³⁹

Still another deterrent to state action comes from the decision in Consumers Union v. Virginia State Bar.40 In that case, the Consumers Union attempted to gather and publish information about lawyers practicing in Arlington County. The publication of some of the information it sought was banned by Virginia's ethical code as "advertising." The Consumers Union filed a § 1983 civil rights action against the  state, its supreme court justices, and integrated bar seeking a declaratory judgment and injunction.41 Tried first before a three‑judge district court, the case went to the United States Supreme Court, then back to another three‑judge district court42 and, finally, to the Court of Appeals for the Fourth Circuit, which awarded the victorious Consumers Union its costs and attorneys' fees covering the entire litigation.43 Since that case was filed, similar suits involving lawyer advertising have been brought under § 1983 and, in all of them, attorneys' fees and costs have been awarded.44 The threat of such suits is another factor that has influenced state supreme courts to stay out of the thicket.

In the Special Committee's score sheet of the states, issued last month, I find no instance of a state adopting the Model Plan for the recognition of trial specialists; and not many more than a handful of states have adopted the plan as a guide for recognition of specialty in any field.

There is one national organization that has done what the ABA has failed to do. The National Board of Trial Advocates has successfully formulated and administered a program for certification of civil and criminal trial specialists. Established in 1977 by the American Trial Lawyers Association, it is governed by an independent board of the highest calibre. This board is comprised of 21 fellows of our Academy, including 3 of its past presidents; 8 past presidents of ATLA; 3 deans of law schools; 4 former or present state supreme court judges; and 2 United States court of appeals and 4 district court judges. Other members include 8 former or present law professors, and presidents of state and local trial lawyers associations.

The requirements set by the NBTA for certification of trial advocates are far more stringent and exacting than those of the ABA Model Standards and give much greater assurance of competency.

In general, an applicant for certification as a civil trial specialist must have devoted at least 30% of his practice to civil litigation during the preceding 5 years; have been lead counsel in at least 15 civil jury trials to verdict; pass a written examination and, if the board desires, an oral exam. Lastly, an applicant must submit a copy of a substantial trial brief he wrote which sets out facts and arguments of law.

Is certification of trial specialists alive and well? Unlike Jacques Brel, it is not. New Jersey and Texas have adopted their own plan.⁴⁵ Florida, Connecticut and Minnesota have approved NBTA certification for civil trial specialists.⁴⁶ Thus, 45 states have not adopted any plan for recognition of trial specialists. I am told that the Supreme Courts of Georgia and Alabama are considering the approval of NBTA certification.

The Supreme Court has not dealt with or mentioned specialist advertising.⁴⁷ In what may come close to it, the Bates court said: "[A]dvertising claims as to the quality of services ‑ a matter we do not address today ‑ are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction."⁴⁸ The comment under Rule 7.4 of the newly adopted Rules equates advertising claims of the quality of legal services with claims of specializations.⁴⁹

With the help of some law students at St. Louis University, we made a survey which, while not "scientific," I believe to be surely accurate enough to support its findings. Our survey began with listing the names of the lawyers who advertised in the yellow section of the telephone directories of Atlanta, Chicago, St. Louis, and San Francisco. The ads ranged in size from 1/2 page to block ads of 1 x 2 inches. Many were in color. I emphasize that we selected only those ads wherein the lawyer either heralded that he was a trial lawyer, or confined his practice to handling cases of injury due to medical malapractice, or product defects, or negligence, or several of those areas, There were 267 such advertisers. We checked each one against the membership rosters of all four prestigious organizations. There were only 9. That means 96% of these advertisers had not been elected into any of the prestigious organizations.

For a double check, we took the names of the lawyers who paid to be listed in the 'Attorney Guide" of the Los Angeles telephone directory under one or more of the headings: "Personal Injury Law," "Product Liability Law," "Trial Practice," and "Malpractice Law." Omitting law firms, there were 344 lawyers who listed under one or more of these headings. Thirteen were members of a prestigious organization. Again, 96% were not. There is no reason to believe that the result would be substantially different if, a similar survey was done in every major city.

Depending upon the city, a half‑page ad in the yellow section ranges from $1,150 to $1,543 per month; and a quarter page ad runs in the range of $780 per month. If the ad has red ink, as many do, the cost is higher.

Do these ads pay for themselves? A spot check shows that about 90% have been repeated over the last 3 years. One such repeater is a St. Louis  lawyer whose ad reads:

"An experienced, qualified Trial Lawyer. Practice limited to Malpractice, Personal injury, Workers Compensation."

Since I did not recognize the name, I checked Martindale‑Hubbell. When he began to run this ad, he had been out of law school five years, three of which he spent as an assistant prosecuting attorney handling misdemeanors.

The Tennessee Supreme Court said this about field of practice ads: "Such statements are calculated to convey to the lay public the impression that the lawyer is a specialist and, therefore, possesses particular expertise in the advertised field."⁵⁰ Judge Boyle of the United States District Court in Rhode Island put it this way:

"The 'laundry list' type of ad stating without explanation areas of law practice is misleading. A lay reader and even experts in other professions are expected to conclude that the attorney is especially qualified in the areas of law mentioned."⁵¹

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