TRIAL LAWYERS, PLUMBERS, AND ELECTRICIANS: SHOULD THEY ALL BE CERTIFIED?
THOMAS P. SARTWELLEt
I. INTRODUCTION ............... 60 II. LEGAL SPECIALIZATION: A SHORT HISTORY ....... ............. 61 III. TRIAL LAWYER INCOMPETENCY EXPOSED. ..................... 62 IV. SPECIALIZATION LEGITIMIZED ............. .................. 63 V. LEGAL CERTIFICATION AT 25. ........................... 64 VI. LAWYER CERTIFICATION FAILURE ....................... 66 VII. CONSUMER DEMAND ................................. ...... 66 VIII. SUPER LAWYERS AND BEST LAWYERS........................ 67 IX. LAW SCHOOL APATHY .................. 70 X. LAWYER FEAR OF TEST-TAKING FAILURE .............. 72 XI. THE ORDINARY LAWYER AND STANDARD OF CARE...................... 73 XII. TRIALS AND TRIAL LAWYERS ARE DISAPPEARING .............. 74 XIII. CONCLUSION .............................................. 76
ABSTRACT
For a century or more the legalprofession has recognized the reality of lawyer specialization, even though ethics rules prohibited lawyers from advertising a specialty for the majority of that time. And, for most of that century a few voices were calling for a post-bar examination board certificationprocess to certify lawyer specialists,particularlytrial lawyers. They were ignored. Finally, the specialty certfyingprocessdemands reached a crescendo in the 1970s. Prominentjudges and others decried the fact that an estimated one-third to one-half of trial lawyers, were incompetent. A national trial lawyer certification program was deemed imperative, but nothing changed. The organized bars all but ignored specialization until twenty years later when the Supreme Court compelled the organizedbars to recognizepeer reviewed andtested specialization. Why would the organized bars vigorously resist peer tested specialization when board certification is commonplace in medicine and otherprofessions? 59