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Bar News - May 4, 2007

Is Vanishing Jury Trial Leading to Decline in Courtroom Competence?


Massachusetts attorney Robert J. Ambrogi, in an Oct. 23, 2007 entry on his blog Legal Blog Watch (at, points to a recent report from the Boston Bar Association and states that “the jury trial is vanishing and, with it, the courtroom competence of new generations of lawyers.” The 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, was produced by a state-appointed task force tasked with studying the impact that the decrease in jury trials has on the practice of law and the legal system in Massachusetts. The report states that:


“The downward shift in the number of jury trials in recent years is forcing changes in how litigation is practiced, and redefining skills-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 layers may lack the confidence and acumen needed to execute the sometimes unpredictable and tumultuous nature of conducting a trial.”


Ambrogi summarizes the task force’s recommended steps to expose inexperienced attorneys to trial law: it approves of a standing order in the US District Court-Massachusetts that seeks to provide courtroom time for inexperienced lawyers; encourages firms to allow associates to take on pro bono cases and serve in public-sector legal externships, provide trial-skills training, and have less-experienced attorneys come to court as “second chairs;” and clients, such as insurance companies, should provide “incentives for developing a deeper cadre of capable trial lawyers.”


Boston lawyer Lee Gesmer is quoted from a posting on as “praising” the report but adding the caveat: “While I’m up for a good-old rollicking jury trial as the next guy or gal—with its enormous expense, unpredictability, risk of jury nullification, 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 fluoride, flossing, and better hygiene!”


Attorney Richard P. Schmitt responded to Ambrogi’s blog posting with these comments about the task force’s recommendations:


“Reading this article raises the question of whether…the downward shift in the number of jury trials along with the increase in the use of discovery procedures means that the American legal system has moved to dispute resolution through negotiation and/or mediation? A pure mediation system would probably be for the good. However, it seems a waste of judicial resources to have judges oversee lawsuits where the lawyers have little inclination or ability to go to a jury trial. Should we, as lawyers, not change our representations to prospective clients, that rather than a trial we will assist with negotiation of a settlement after intensive and expensive discovery? Is that not closer to the reality? The suggestion of lawyers learning to try cases before a jury by doing pro bono work is practicing a skill using poor people’s rights….”


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