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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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