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Is Courtroom Competence Going Kaput?

The jury trial is vanishing and, with it, the courtroom competence of new generations of lawyers. So says a fascinating new Boston Bar Association report, Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial Competency among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon. The report is the product of a task force appointed to study the "vanishing jury trial" and its impact on the practice of law and the legal system generally. It concludes that jury-trial numbers are declining, nationally and in Massachusetts, leading to a dwindling pool of experienced trial lawyers.

"The downward shift in the number of jury trials in recent years is forcing changes in how litigation is practiced, and redefining skill-sets of the current generation of young lawyers, in ways that eventually will reshape the legal system. ... The benefit of this change in approach is that young lawyers may be more adept in the art of careful preparation; the downside is that these lawyers may lack the confidence and acumen needed to execute the sometimes unpredictable and tumultuous nature of conducting a trial."

To counter this trend, the report recommends three steps to ensure training of the next generation of trial lawyers:

  • Courts should encourage participation of inexperienced attorneys in all court proceedings. The report cites with approval a standing order in federal district court in Massachusetts that seeks to provide courtroom time for less-experienced lawyers.
  • Law firms should encourage associates to take on pro bono cases, allow them to serve externships in district attorneys' offices, sponsor or provide trial-skills training and bring them into the courtroom as second chairs.
  • Clients, particulary insurance companies, should "think more innovatively about approached to staffing" and provide "incentives for developing a deeper cadre of capable trial lawyers."

At,  Boston lawyer Lee Gesmer praises the report for its convincing evidence, But, he adds:

"While I’m as 'up' for a good old rollicking jury trial as the next guy or gal — with its enormous expense, unpredicatability, risk of jury nuliffication, ignorance or disinterest, and stress on all concerned (mostly the clients) — I’m not sure that fewer jury trials is a 'bad thing.' I would liken it to dentists bemoaning the lost opportunity to fill cavities. Darn that flouride, flossing and better hygiene!

Posted by Robert J. Ambrogi on October 23, 2006 at 02:17 PM | Permalink | Comments (4)


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