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    Perspective | Magazine

    The case of the vanishing trial lawyer, and why it matters to all of us

    A veteran trial lawyer says a trend against jury trials makes it easier for people and companies to hide misdeeds.

    Adobe stock; globe staff photo illustration

    I tried my first case in front of a jury a few months after passing the bar. I was defending the owner of a Watertown taxi, who had been in a collision and was sued for property damage by the other driver. I was 23, and I’d never even seen a jury case. I had no idea what I was doing.

    Everyone — my client, the opposing counsel, and the judge — recognized this, but they were all very kind to me. The judge offered quiet instructions. When I was asked a question I didn’t understand, I just paused until someone offered guidance. The trial lasted a few hours. The jury deliberated for a day before finding in favor of my client. I’m convinced the jury was sympathetic to a client whose lawyer was so obviously inexperienced. My fee for the case was $50.

    The next week, I tried another case, and then another. Slowly, I learned what I was supposed to do in a courtroom. Representing a client in a civil trial, which in the last 55 years I’ve done literally hundreds of times, is like many other activities in life: You can read about it in books or learn about it in school, but the only way to become really skilled is by doing it.

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    Today, most trial lawyers can’t learn by doing. A young lawyer couldn’t start out the way I did because most minor cases now are in small claims court or have been eliminated by “no fault” clauses (not a bad thing). My firm, which specializes in medical malpractice defense, has three talented associates who’ve been with us almost five years. Each wants to be a trial attorney, and this job should be an apprenticeship — but so far, none has actually tried a civil malpractice jury trial solo. Medical negligence cases are far higher stakes than my old taxi case, and they make up a large percentage of actual jury trials these days. But only 1.5 percent of civil cases in Massachusetts make it to trial, a sharp drop since I was a young lawyer. Criminal trials have also fallen off, due to plea bargaining and the great expense of going to court. Judges push parties to settle, and many contracts now call for disputes to go to arbitration instead of court. I know lawyers who’ve made partner in the trial departments at large Boston law firms without once arguing a jury trial all the way to a verdict.

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    When cases do go to trial, junior lawyers are typically left back at the office. Since the 1990s, some insurance companies have resisted paying for a junior attorney to be the “second seat” in the courtroom, helping with research and making suggestions. And insurers generally insist that senior attorneys try the cases.

    The result is that part of the legal profession’s apprentice system is disappearing — and that’s a problem. I recognize that lawyer is not the most popular profession, and few people will be upset by less frequent jury duty. But look at the stories we keep seeing about habitual offensive behavior by individuals and companies that were kept out of public view, sometimes for decades. Whatever you think of the jury system, it is public for one and all. No sealed settlements, no confidential arbitration and mediation agreements. As federal Judge Jed S. Rakoff told the New York Times in 2016, “A trial is the only place where the system really gets tested. Everything else is done behind closed doors.”

    Every profession needs to train newcomers in the hands-on practice of the craft — the vital parts of the job that can’t be taught in school. If you hire a plumber to fix your hot water heater, a young apprentice likely comes along. If you go in for surgery at one of Boston’s teaching hospitals, interns or residents will likely hold some of the instruments that go inside your body (under the close supervision of an experienced surgeon). If you hire a lawyer, well, the system has dwindled to the point where, in December, the judges of the Massachusetts Superior Court called on firms to let less experienced lawyers do something — argue a motion, examine a witness — at trial. “Without the chance to speak in a courtroom . . . future generations of litigators will be less equipped to represent their clients effectively,” the judges wrote. It’s a good call.

    Firms need to find creative ways to get young lawyers more experience. Our firm has associates take depositions, argue motions, and question some witnesses. When they aren’t able to second seat a trial, we have them help prepare for the trial and, when possible, come to court to observe certain witnesses. Other firms are giving young lawyers more time to try pro bono cases.

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    The United States is the only country that offers citizens a constitutional right to a jury trial across the sweep of civil law. Leaving matters of law in the hands of the citizenry is an important element in our participatory democracy. Think about it: If your loved one is injured as a result of a poorly designed product or an incident of malpractice or some form of abuse, don’t you want an experienced lawyer to handle your case?

    Edward D. McCarthy, a partner at McCarthy Bouley Barry & Morgan in Waltham, is writing a book about his career as a trial lawyer. Send comments to magazine@globe.com. Get the best of the magazine’s award-winning stories and features right in your e-mail inbox every Sunday. Sign up here.