Robert Ambrogi has a nice post at Legal Blog Watch that poses the question, "Is Courtroom Competence Going Kaput?" Robert cites a recent Boston Bar Association study that concludes that the decline in civil-court jury trials is leading to a dwindling supply of experienced trial lawyers. (By "trial lawyers," I mean lawyers who try cases — not the euphemism for the tort-plaintiff bar.)
The study, encumbered with a wordy (and underhyphenated) title "Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial Competency among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon," focuses on the Bay State but applies nationwide. It expresses concern that more lawyers "lack the confidence and acumen needed to execute the sometimes unpredictable and tumultuous nature of conducting a trial." And it suggests a number of changes to help newer lawyers get more trial experience.
But friend and colleague Lee Gesmer, of Boston's Gesmer Updegrove LLP (celebrating its twentieth anniversary this month — no mean feat), notes in his Mass Law Blog that diminishing jury trials isn't a bad thing for our clients. Lee attributes the drop in jury trials partly to an increase in clients' sophistication. Our clients are now more likely to have in-house counsel watching out for their interests. Clients are becoming more concerned about rising litigation costs (and jury trials are almost always more expensive than other outcomes). And courts are often too slow; businesspeople want to move on, whle litigation is all about reliving the past.
Lee's summing up deserves another look:
I tell clients from the first day a dispute arises that, no matter how angry or enthusiastic for a trial they may be, their case is likely (statistically speaking) to settle, and that they should constantly keep settlement options actively in mind. I tell them that the only reason a civil case should go to trial is if one side badly misjudges the facts or law underlying the case. If the case is close, it should settle (why take the risk of an all or nothing gamble?). If it is one-sided, it should settle, since it should be clear that one side is likely to lose.
Conversely, I once heard a senior partner of a large national firm tell a seminar audience of lawyers that if you ever had the chance to do a jury trial, you should seize the opportunity because they can be a lot of fun. I agree: they can be a lot of fun. But for the lawyer, not for the client. I'm sure that partner's clients wouldn't have appreciated those remarks. Instead, more clients should hear words like Lee's.