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Tuesday, March 1, 2011

Competency and the Trial Bar: Using Medical “Privileging” as a Model

Scott Donaldson – trial court judge in Tuscaloosa County, Alabama; adjunct faculty in Trial Advocacy, University of Alabama School of Law. The views are solely those of the contributor.

Many thanks to my friend Professor Chris Behan for the opportunity to join in the discussions. I really enjoy reading the views of the contributors.

A license to engage in professional activity, as opposed to a trade, should require at least some indicia of competency. Here's a question - what profession permits a licensee to engage in an activity affecting the life, liberty or property of a citizen with no training in that activity? Law. Our law schools are doing a fantastic job of educating lawyers, but even the broad scope of that education over the traditional three year model cannot address all aspects of practice. Thus, a person can graduate from law school, pass the Bar exam, and represent a client in court without any proof that he/she is competent to do so. Perhaps this deficiency was remedied in the past when newly admitted lawyers were promptly hurled into "minor" civil and criminal trials, often under the tutelage of a more experienced lawyer. While I question the quality of representation in those first few trials, experience taught lessons that improved the quality. But times have changed. Today, even lawyers with a "litigation practice" can go years without trying a case in my area of the country for two primary reasons: (1) there are more of them resulting in fewer trial opportunities per lawyer, and (2) there are fewer civil trials due to mediation and/or arbitration. Thus, the lawyer who did not obtain trial advocacy training in school will not likely obtain much on-the-job trial experience either. As a result, the overall quality of representation diminishes.

I am firmly convinced that lawyers who took (and passed) a meaningful trial advocacy course or who regularly try cases (bench or jury) are more effective, more informed about the Rules of Evidence and Procedure, more confident, and more efficient in utilization of limited resources than those who do not. Their clients are better served and are more satisfied with the process. Thus, I think we should consider a bifurcated license. Pass the Bar and you are licensed to practice law. To represent a client before a court, however, you need an additional certificate. You obtain the certificate by satisfying additional requirements such as either (a) establishing that you took and passed a trial advocacy course in law school within three years of applying for the certificate, or (b) obtaining 12 hours of approved continuing legal education training in trial advocacy courses. Once you have obtained the certification, you may renew it every three years by establishing that you have appeared in at least ten cases or tried three bench or jury trials to verdict, or, obtained 24 hours of approved trial advocacy CLE. (The number of CLE hours and trials are for discussion only.)

Now, I'm not suggesting that we evolve toward a barrister/solicitor system as found in some countries, primarily because I am ignorant about those systems. I am suggesting, however, that it is time to seriously question why we are licensing lawyers to do something they don't know how to do. Perhaps we could analogize the additional certificate to the medical "privileging" concept. A physician can be generally licensed to practice medicine in a state, but must obtain additional "privileges" to perform services within a hospital such as operating on a patient. To obtain the privilege, the physician must prove that he or she has the requisite skill and expertise through training and/or experience. When properly applied, the system operates to protect patients from incompetent care and quality improves. Furthermore, the privileges are periodically reviewed to ensure a continuing level of competency. For example, a physician who has not performed an operation in years will either lose the privilege or be required to obtain refresher training. The same approach could be used for lawyers as well. A lawyer who has not represented clients in court in years should not be licensed to do so without some type of review.

I'm quite sure there are many downsides to this proposal, but we cannot continue down the same path and expect anything to improve. The public has a right to question the quality of services being rendered by what remains a profession. We need to respond.

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