14:23, May 09 138 0 abajournal.com

2018-05-09 14:23:09
In an era of the vanishing trial, would-be litigators aren’t getting valuable experience, op-ed says

Edward McCarthy handled his first jury trial 55 years ago, just a few months after passing the bar.

McCarthy was representing a taxi owner sued for property damage in a collision case. The judge and opposing counsel were patient and kind, and McCarthy won. He continued to try civil cases, handling hundreds of trials, McCarthy writes in a Boston Globe op-ed.

It’s difficult for young lawyers to get that experience today, partly because fewer cases are going to trial and partly because some insurers don’t want to pay for junior lawyers to sit second chair in the courtroom, says McCarthy, a partner at McCarthy Bouley Barry & Morgan in Waltham, Massachusetts. The firm defends medical malpractice cases.

“Today, most trial lawyers can’t learn by doing,” he writes.

Minor cases are in small claims court or they aren’t tried at all because of no-fault clauses in insurance contracts, he says. There are also fewer trials because of arbitration clauses in contracts, and a push for settlements by judges. “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,” he writes.

The impact extends beyond the legal profession, McCarthy says. “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,” he says. “Whatever you think of the jury system, it is public for one and all. No sealed settlements, no confidential arbitration and mediation agreements.”