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Solving The Prosecutor Readiness Crisis in America
Are your Lawyers Trial-Ready? Here’s What to Do if They’re Not.
Unless you are just getting back from a four-year sabbatical in Siberia, you know unwanted turnover is a crisis in America’s prosecutor offices.¹ Caseloads and prosecutorial duties have ballooned, causing the lawyers who remain to feel overwhelmed and burnt out. This creates more turnover, and the vicious cycle repeats itself, with proper trial advocacy training as a primary casualty. Today’s DAs simply don’t have a bench of 20–30-year veterans to help coach and train young prosecutors like they used to have.
I was terrified before my first jury trial in 1994. I was a brand-new prosecutor in the City of St. Louis assigned to a fast-approaching jury trial in which my victim was beaten with a tire iron. After freezing momentarily, deer-in-the-headlight style, I got to work. I walked up and down the halls of the office, talking to every prosecutor I saw about my case. The tips and insights I received from those virtuoso prosecutors were worth their weight in gold. I was prepared and confident when the trial day arrived, and I achieved justice with many of my advisors in the gallery cheering me on. They gave me feedback when the trial was over, enabling me to learn even more. This was the trial preparation process I repeated for every one of my first 20 jury trials. This was how I learned to be trial-ready. If you are of my vintage, this probably sounds familiar. If you are a young prosecutor, this probably makes you jealous.
The sad truth is that the old days are gone and will likely never return. There is simply not enough time or resources in most offices to properly train new prosecutors in-house. We can no longer count on “on-the-job” training to produce the type of skilled prosecutors our caseloads demand. We need to find other ways to ensure that America’s prosecutors are ready for trial.
Many state and national prosecutor associations do a great job of holding an annual “boot camp” or other training programs to fill the gap. Thank goodness for them! Yet, state and national trainings alone do not meet the current demand. These trainings can be inaccessible from a financial and resource perspective. It can be impractical and very expensive to send several prosecutors out of town for training. Many national trainings are designed to train a broad cross-section of the nation’s prosecutors and, therefore, may not take into consideration the specific needs of a particular office, jurisdiction, or community.²
The Result of Inadequate Trial Training
Every elected or appointed prosecutor pledges to the community. We pledge to do our best to pursue justice and to hold the right people accountable with skill and integrity, protecting the rights of all.
This fundamental commitment breaks down if prosecutors are not properly trained. Many offices fall victim to “the blind leading the blind” scenario where inexperienced lawyers train inexperienced lawyers causing preparation and advocacy failures to compound and perpetuate themselves. The potential for both erroneous convictions and wrongful acquittals grows. Caseloads continue to rise due to stress-related turnover and can soar to a level where it’s virtually impossible to meet discovery and Brady obligations. Remember your pledge to the community? At this point, it is impossible to keep.
What To Do?
Take a Clear-Eyed Look at the Situation
This may seem like a no-brainer – but sometimes it’s hard to see that your trial staff needs help. No one wants to admit to the boss that they don’t know what they are doing. Metrics like turnover rate and conviction rate can provide some clues, but we recommend digging a bit deeper. Consider an anonymous survey where your lawyers can tell you how they feel about their training levels. Speak to other stakeholders – judges, defense attorneys, police witnesses, even court clerks and bailiffs. Get their insights on how your team is doing. Take a more granular look at your win/loss record. Are you losing cases that you should be winning? Are you charging cases that you shouldn’t? Are your plea recommendations consistent? Or do some lawyers plead everything out to avoid trial? This information can form an accurate picture of the sufficiency of your trial advocacy training levels.
Take Heart and Take Action
Ready for some good news? There are solutions – some are even free! – to elevate your team’s trial-readiness.
Commit to prioritize training and development. There is no escaping the reality that developing a highly trained trial staff requires a commitment of time and organizational bandwidth. There are dozens of urgent matters demanding your focus and attention – just today. But when you think about your pledge to the community, you will realize that few matters are as important as making sure that your trial team can do their job with skill and integrity.
Save resources by having the training come to you. Instead of paying travel costs for one or two select members of your team to attend an out-of-town training, you can save money and train your entire team by bringing the training to your office. Many of our clients have arranged for trial advocacy training during a non-jury week in their circuit, so all lawyers could attend. This approach fosters a team culture and ensures everyone learns the same material at the same time. A bonus: the training can be customized to fit your jurisdiction and challenges.
Trim costs with virtual training. The pandemic silver lining is that we all realized we could do things via video conference that we never thought possible. Eureka! These days it’s possible to do trial advocacy via Zoom. Our clients can opt for 100% virtual learning or can utilize our unique hybrid approach wherein the lecture portion of training is offered virtually followed by in-person practice drills. This popular approach saves money while still providing students the full benefit of in-person instructors and real-time feedback.
Go “on-demand.” You may choose to do your trial advocacy training utilizing only pre-recorded lectures. While less interactive, pre-recorded lectures can be an effective way to provide quality training to new prosecutors. We recommend showing lectures to a group of attorneys and then engaging in discussion or practice afterward. We have pre-recorded lectures on multiple topics, from basic to advanced advocacy.
Partner up. Combining with neighboring jurisdictions makes trial advocacy training much more affordable. We recently conducted a training where several small jurisdictions combined to have a regional trial advocacy training.
Explore grant funding. Many clients hire us for trial advocacy training with grant funds. There are numerous sources of funding including the NTTAC program from BJA and Byrne grants. Many state and local governments also have funding to assist prosecutors with training. Area colleges and law schools are also helpful in providing facilities for training.
Bring in alumni as instructors. If you are one of the many offices that do not have a wealth of experienced prosecutors to conduct in-house training, consider asking seasoned alumni to come back to give a lecture or two. Sometimes these former assistants who’ve “walked the walk” in your jurisdiction make excellent, compelling instructors for the new lawyers. Many alumni are still public servants at heart and are willing to volunteer their time for the good of the office.
Create a structured mentorship/trial coach program. Properly done, formal mentorship programs can be an effective way to provide training for newer lawyers. What do we mean by formal? It’s magical thinking to believe that mentorships will happen organically in 2024. Despite good intentions, the frantic pace of prosecutor work will relegate mentorship relationships to the back burner in the absence of clear guidance on structure and expectations. We recommend a formal pairing of experienced and less experienced lawyers, combined with training for both mentor and mentee on creating success in their relationship. Clear guidelines on roles, frequency of meetings, and second chairing must be in place. Leadership must also require scheduled check-ins with all parties to make sure the mentorship program is working as intended.
Create a feedback culture. Encourage your lawyers to seek feedback after every trial. The judge, their colleagues, and even court personnel can provide valuable feedback for new lawyers. Make it an expectation that everyone seeks feedback from each other regularly.
The landscape of trial advocacy training has changed, and we are challenged to change with it. To address the crisis, prosecutor offices must prioritize trial readiness by implementing innovative training approaches such as virtual and on-demand learning, exploring grant funding, engaging alumni as instructors, and establishing structured mentorship programs. Embracing a feedback culture is also crucial for continuous improvement. By taking these proactive steps, prosecutor offices can ensure that their attorneys are adequately prepared to uphold justice and serve the community effectively in the courtroom.
¹ For an extensive discussion of the turnover problem and its complex causes see Gershowitz, Adam M., The Prosecutor Vacancy Crisis (December 15, 2023). William & Mary Law School Research Paper No. 09-480, Available at SSRN: https://ssrn.com/abstract=4666047 or http://dx.doi.org/10.2139/ssrn.4666047
² For example, a prosecutor in Maryland expressed frustration at spending a day talking about voir dire in a national training when, in her state, the judges conduct voir dire.
Why Your Top Prosecutors are Leaving – And What You Can Do to Stop Them