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23 Geo. J. Legal Ethics 155 (2010)
Honesty is the Best Policy: It's Time to Disclose Lack of Jury Trial Experience

handle is hein.journals/geojlege23 and id is 157 raw text is: Honesty is the Best Policy: It's Time to Disclose Lack of Jury Trial Experience TRACY WALTERS MCCORMACKt & CHRISTOPHER JOHN BODNAR2 ABSTRACT This article discusses one of the subtle but significant ramifications of the vanishing jury trial: the potential injury caused to clients unaware of litigators' diminishing jury trial experience and skills. The empirical research conducted for this article establishes that while clients spanning all levels of sophistication view that lack of experience as important, litigators are not forthcoming with this information. In an attempt to seal off the avenues of escape for lawyers unwilling to disclose their lack of experience or skills, the authors have collected data that not only documents the failure to disclose and confirms that clients assume the litigators have jury trial experience, but also that clients would be unlikely to hire those litigators if informed of the lack of experience. The article substantiates that jury trial skills are important, even when the case is not tried, thereby calling into question the very nature of informed consent and the perceived voluntary selection of ADR. The authors conclude that a lawyer's failure to disclose in this situation should be considered actionable conduct. INTRODUCTION An uneasy traveler, entering into an unfamiliar land, happens upon a guide station. As she enters, an eager guide quickly approaches her Choose me, he beseeches, I've been around a long time now and I can guide you to your destination. The woman hires the guide with the expectation that he will be able to help her effectively navigate through this land. Several miles beyond the guide station the pair reach a fork in the rocky 1. Professor Tracy Walters McCormack is a Lecturer and Director of Advocacy at The University of Texas School of Law. She also runs the John L. Hill Trial Advocacy Center, Harry Reasoner Center for Trial Practice and Kincaid and Horton Excellence Fund for Empirical Research. Professor McCormack received a B.A. from the University of Notre Dame in 1983 and a J.D. from The University of Texas School of Law in 1986. 2. Christopher Bodnar is currently a law clerk for the Honorable Leslie Southwick, U.S. Court of Appeals for the Fifth Circuit, and was formerly a law clerk for the Honorable Danny Reeves, U.S. District Court for the Eastern District of Kentucky. He received his B.A. from Boston College in 2003 and his J.D. from The University of Texas School of Law in 2008. We would like to give special thanks to Mary Rose, Assistant Professor of Sociology at The University of Texas. Without her knowledge and assistance we would not have been able to conduct the surveys and collect the data associated with this Article. We would also like to thank Jim McCormack, Maria Massin, and Cheryl Brandt for their contributions to the editing and revision process.

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