For a student’s view of litigation, see Liaison Notes, page 60.

It might be said that litigation is a legal specialty in the same way that surgery is a medical specialty. Just as individual surgeons can fix medical problems ranging from tumors to inflamed appendixes, individual litigators can fix legal issues ranging from contract disputes to constitutional violations.

Litigators are the courtroom gladiators of the legal profession. Unlike transactional lawyers, who work behind the scenes drafting contracts and wills, negotiating agreements, and consulting with clients on various legal matters, the litigator’s primary job is to argue cases in court before a judge and jury.

Although many litigators, like many surgeons, focus on a particular area, others must be prepared to shift quickly between the legal realm and the type of business at issue, be it medicine, insurance, manufacturing, or whatever.

"It’s an exciting life because you’re not bound to a routine but are called upon again and again to learn someone else’s business and to make judgments likely to affect outcomes and lives," says Stephan Landsman, a law professor at DePaul University and chair of the Law Schools Outreach Committee of the American Bar Association’s Litigation Section. The Litigation Section is the ABA’s largest section, with more than 60,000 members and dozens of specialty committees devoted to every conceivable niche area of litigation.

To be a good litigator, Landsman says, a lawyer has to know the rules of evidence, civil and criminal procedure, and any specific rules that apply to various specialty courts, such as bankruptcy.

Another requirement is "painstaking preparation," Landsman adds. "Preparation is the key to excellence. You have to ask yourself, ‘What is it that lawyers do?’ Litigation is about sifting information, finding facts, and creating legal theories. That is learned through hard work and apprenticeship. You need to watch accomplished lawyers and learn from them. This is an art, not a science."

But however important a good general knowledge and preparation are, the trend in litigation, like in the law generally, is toward specialization. Among the perpetually strongest specialty areas for litigators is construction law.

"There are few types of cases more tedious to handle in a jury trial than a large construction case," says Greensboro, N.C., lawyer Allen Holt Gwyn, chair of the ABA’s Forum on the Construction Industry.

Gwyn says construction is one industry that, while it may go through cycles of slow growth, is nevertheless always growing. And because so much money is at stake, and there are so many phases where things can go awry, disputes can be almost as common on any construction site as hard hats. Lawyers who practice this type of law are therefore expected to be well-versed in the lingo and business practices of a wide variety of building tradespeople, from plumbers, electricians, and masons to heating and air conditioning specialists and interior designers.

"The standard of proof is always going to be ‘industry standard’—that is, good business practices—in the given trade in question. You have to be conversant with those standards," Gwyn says, adding that it also helps to know how to read a blueprint and understand the engineering that goes into the design and construction process.

But when things go bad in a construction project, it is often prohibitively expensive to put the project on hold while some point of contention is litigated through the conventional court system, a process that can take years. In complex construction cases, in which the issues are often very specific to building industry standards, a great deal of time can be saved by hiring an experienced arbitrator, Gwyn says.

In fact, the construction industry is among the primary places where the concept of alternative dispute resolution—or ADR—is gaining a firm foothold. Nationwide, because of the expense and uncertainty of a full-blown trial, about 95 percent of all cases filed in American courts end up being settled out of court, many through alternative processes. ADR includes negotiation, mediation, and, by far the most common, arbitration.

"Arbitration encourages a problem-solving approach, rather than a clash of armed champions," says James Alfini, a law professor at Northern Illinois University and chair of the ABA Section of Dispute Resolution. "It allows lawyers to use all of their skills to solve their clients’ problems."

Because ADR is such a fast-growing field, the Dispute Resolution Section is also among the ABA’s fastest growing sections. Among its many activities is the work being done with other national organizations on a redraft of the Uniform Arbitration Act. The new version, due later this year, may include controversial confidentiality provisions. Currently, most arbitrations, because they are private resolutions of conflict, are not a matter of public record. But some believe that the spread of arbitration as a common form of resolution means that more of the proceedings, like those in court, should be open to the public.

Whatever the outcome of this debate, ADR is clearly becoming an integral part of the court system. "A person who graduates from law school today intending to be a litigator and who is without ADR skills does so at his or her peril," Alfini says.

But even with the growing popularity of ADR as an efficient means to resolve conflicts, don’t expect litigation to shrink anytime soon, Landsman says.

"In a country like the U.S. where negotiation is not favored," he says, "a huge number of issues are going to continue to wind up in court."