Does it Happen to Everyone?

In the bustling corridors of the Douglas County Courthouse, the busiest courthouse in Nebraska and known as the “Hall of Justice,” the Prairie Barrister found themselves face to face with a young lawyer who was clearly in distress. The young lawyer’s voice trembled with frustration and disbelief.

“Prairie Barrister, I don’t understand what just happened,” the young lawyer began. “The judge’s recent order was completely upside down. They cited directly from the defense counsel’s brief without checking their legal citations. The citation was given to the court by the insurance lawyer who knew the case had the exact opposite holding, but the judge never even checked the citation before putting it in their order. I provided the correct legal standard and citation that was key cited and confirmed to be up to date.”

“Ouch,” replied the Barrister, knowing this kind of thing happens more than it should.

The young lawyer continued, “And they weren’t just wrong on the law, they were wrong on the facts too. I provided the evidence that shows the facts cited in the order are wrong. But the judge wrote demonstrably incorrect facts in their order anyway.”

The young lawyer continued, “Was it me? Is it something about how I write? About how I argue? Does this happen to everyone or just me?”

The Prairie Barrister listened patiently, understanding the depth of the young lawyer’s frustration and the personal toll it was taking. Then, with a touch of wry humor, replied, “No, it doesn’t happen to everyone—just civil plaintiff lawyers arguing for negligence victims against corporate power!”

The young lawyer let out a small, disbelieving laugh. “What? But why? Why is it like this?”

“It’s a confluence of several factors,” the Prairie Barrister began. “First, let’s consider the background of most judges. Hardly any judges have ever practiced plaintiff law. A few might have dabbled, but rarely were they a dedicated civil plaintiff trial lawyer who then chose to become a judge. And it took me ten years of dedicated practice to really understand the ins-and-outs of civil litigation, so a judge with minimal or no experience handling these cases can be forgiven for not understanding all the dynamics at play.”

The young lawyer took a breath, “Well, sure, but some of them have civil litigation experience, right?”

“If they have any experience with civil trial practice, it is usually as a former insurance or corporate lawyer turned judge, which is not the same at all. In fact, that can feel like having a second opponent on the bench.”

“Exactly,” the young lawyer interjected, “I have experienced that before.”

The Prairie Barrister continued, “Many judges are former prosecutors who never handled civil plaintiff cases and don’t really understand the intricacies involved. They see their docket and know 99 out of 100 times these cases settle before trial. I’ve had multiple judges tell me they can go a year or more between civil jury trials — which means they may have only handled a few in their entire career.”

The Young Lawyer nodded. “Wow. Because they know the cases usually settle, they know even less cases are appealed. The bottom line is, they know even a wrong decision is unlikely to ever be reviewed so why put too much time and effort into it with so many other pressing matters to address?”

“On that, there is a little bit of justification,” added the Prairie Barrister. “Afterall, the judges are swamped with divorces, criminal cases and more. It isn’t like they have nothing else to do. These civil disputes usually take care of themselves, so putting their time on other matters can seem smart to them.”

The Prairie Barrister a continued, “But judges sometimes miss the larger truth that often, civil justice is the only justice the victims of crimes will receive directly or that the harm caused by simple negligence of running a stop sign, for example, can be huge and urgent, like death and severe permanent injury.”

The young lawyer sighed, the weight of reality setting in. “And the sympathy they show—it’s surprising. Many judges have dealt with criminal defense litigation tactics as a prosecutor or from the bench and deal with it efficiently and no nonsense. But it is totally different in civil litigation.”

“That’s true,” the Prairie Barrister agreed. “Civil defendants for money damage verdicts receive more leeway to delay, deny, and defend. It’s perplexing, given the civil defendant has sometimes been a criminal defendant that received zero sympathy during no-nonsense criminal proceedings.”

“And the pretrial rulings,” the young lawyer continued, frustration creeping back into their voice. “They always seem to delay the trial. The defense never seems to have enough information disclosed, yet they hardly disclose anything themselves. They make dubious accusations with no proof but so many such accusations, on so many topics, that it makes simple cases seem complex. In the end, the judges end up overwhelmed by unimportant side issues, start to believe there is too much going on to have a trial and continue deadlines and trial - which is all the defense wanted to begin with.”

“Exactly,” the Prairie Barrister said, a note of empathy in their voice. “Civil defense lawyers are often masters at using delay tactics. They will slow down every step of the process and then turn around and claim that they need more time. When judges buy it, it is a frustrating cycle.”

“But here’s the silver lining,” the Prairie Barrister continued, leaning forward. “The jury is our ultimate saving grace. It may take years of frivolous litigation. You may face headwinds from your opponent and the bench, but that is precisely why the Seventh Amendment exists. So you, the trial lawyer, can argue about truth and justice to your neighbors, the jury, and sideline all the legal gamesmanship. It gives us, the trial lawyers, one shining opportunity to set it all right.”

“The Seventh Amendment is my favorite amendment,” said the Barrister, “It is the reason I try every case I can to a jury. Never to the bench if I have a jury right. Certainly, never giving the power to set the value of a case to my opponents, corporate or insurance lawyers!”

The young lawyer looked up, hope rekindled in their eyes. “So, we just have to be patient and persistent?”

“Exactly,” the Prairie Barrister affirmed. “If you keep your focus on preserving your trial right and trial date, you can deflate the importance of these squabbles and erase every single litigation battle. With this mindset, you’ll gain patience.”

“As an added bonus, if you keep a patient, professional attitude, sometimes a judge will surprise you. One time, a judge sided with my opponent for years during pre-trial litigation but then, during the trial, they realized my opponent was supplying them bad law and their rulings would be reviewed on appeal. The damn broke and the judge started applying the law as it was written, exactly the opposite of how my opponent had been arguing, and we got a tsunami of favorable rulings – just in the nick of time.”

“Ask yourself this, would you rather have the judge give you favorable ruling for years during pre-trial litigation or for a few days at trial?

“Trial, of course!” The young lawyer responded quickly.

“So, let me ask you a question, on this most recent order you mentioned: Do you still have a jury trial right and a trial date?”

The young lawyer smiled big, “Now that you mention it, yes. I do still have my trial right and trial date.”

“Then you are still in the game,” the Prairie Barrister said calmly.

The young lawyer nodded, a sense of calm settling over them. “Thank you, Prairie Barrister. I needed to hear that.”

“Anytime,” the Prairie Barrister replied warmly. “Remember, you’re not alone in this fight. We all face these challenges, but it’s our commitment to justice and our belief in the truth that guides us through. Despite everything, keep faith in the process, and trust that the jury will see the truth and deliver justice.”

As the young lawyer walked away from the Prairie Barrister, they felt a renewed sense of purpose. The road ahead might be fraught with challenges, but with patience, persistence, and a steadfast belief in the power of the jury, they knew they were ready to carry the torch forward.