Few chances for lawyers to develop trial skills

In legal circles, the phenomenon is so widespread that it actually has a name: the vanishing trial.

Over recent decades, the number of courtroom trials has dropped dramatically in both federal and state courts, according to numerous national studies. Because of the high cost of going to trial, fear of unpredictable jury verdicts, and other factors, many cases instead are being resolved through settlements, mediation, and arbitration, which litigants often prefer to the emotional ordeal of going to court.

But the disappearing trial has created a troubling ripple effect for the legal profession: rapidly dwindling opportunities for lawyers to hone their litigation skills, resulting in a generation of young attorneys who have rarely -- if ever -- stepped foot in a courtroom.

The Boston Bar Association has taken a small step to remedy that problem. Earlier this month, it expanded its "lawyer-for-the-day" program at Boston Housing Court, in which attorneys give free legal advice to tenants and landlords, to include having lawyers try cases in court. The change is designed not only to help low-income litigants, but also to let trial-starved lawyers connect with a jury, relate to a judge, and develop other trial skills mastered only through real-life practice.

"This is a chance for people to get that on-their-feet courtroom trial experience while at the same time filling a desperate need," said Samuel B. Moskowitz, co chairman of the pro bono committee of the Boston Bar Association's real estate section, which runs the program with the Volunteer Lawyers Project. "We think this will create a large group of volunteer lawyers who, at the same time they're helping others, will benefit themselves."

The vanishing trial has been researched extensively, and an American Bar Association study found that the number of courtroom trials has decreased from 11.5 percent of all federal civil cases in 1962 to 1.8 percent in 2002. Federal criminal trials also plummeted, from 15 percent to less than 5 percent. State courts experienced a similar decline.

The Boston Bar Association recently commissioned a "task force on the vanishing jury trial" that -- while it could not quantify the phenomenon in Massachusetts because of spotty state data -- concluded that "few civil practitioners entering practice today can reasonably expect to try a significant number of cases over their entire careers," according to a report issued last month.

Indeed, while young lawyers sometimes appear in court for motion sessions or evidentiary hearings, and a few occasionally "second chair" a trial by assisting a more experienced attorney, few get a chance to run a trial on their own. As a result, many law firms encourage associates to participate in externships, pro bono projects, and trial training programs at state and federal prosecutors' offices that give them opportunities to handle a trial in its entirety. It is also not unusual for associates at large firms to move to smaller firms where they are more likely to get time in court.

"It's really hard to get trial experience as an associate at a law firm because it's a very unique skill set, there's a lot on the line, and the client understandably feels more comfortable with someone who has done this a few times," said Matthew C. Moschella, an associate at the Boston firm Sherin and Lodgen who co chairs the Boston Bar Association's new lawyers section, which assists attorneys in their first decade of practice. "So it's a Catch-22, because you want to get the experience so you can do it someday, but no one's willing to let you do it until you've actually done it."

The scarcity of trial time means some lawyers struggle to keep their trial skills sharp, there are fewer senior trial attorneys who can mentor junior lawyers, and there could be a smaller pool of competent trial lawyers in the future to handle cases that must be tried before a judge or jury.

Boston Housing Court offers young lawyers an ideal forum to get trial experience, in part because many housing trials resolve in a single day, unlike complex civil trials that can take years to complete. The lawyer-for-the-day program is held each Thursday, which is "eviction day" in housing court, formally known as summary process day. On a typical Thursday morning, as many as 200 eviction cases are processed, and several hundred people can choke the hallways, including families with children in tow. About 90 percent of all tenants and at least half of all landlords arrive without a lawyer, according to court officials.

Each week, between two and six volunteer lawyers station themselves at tables outside several courtrooms, where they are available to answer legal questions. Some are solo practitioners who give of their time free of charge; others are from firms that give them time off work.

Since the program was started in 1999, it has mainly helped tenants and landlords prepare to go into court and appear before a judge. Volunteers also sometimes accompany litigants to mediation sessions, but until now trial work has not been a part of the project. Trial training began earlier this month, and next month the volunteer lawyers will start representing litigants in court .

"I really do believe this expansion will give people the experience they want in a way that recharges their batteries and reminds them why they wanted to be lawyers in the first place," said Moskowitz.

Among the volunteers are several in-house lawyers at Boston insurer Liberty Mutual Group, even though some of them may never need to take an insurance case to court. "The skills of being a trial lawyer are completely transferable and helpful for any kind of lawyering," said senior corporate counsel Kathleen McGrath, who oversees Liberty Mutual's pro bono work.

Trial work gives lawyers "the experience of having to think fast and come up with objections and come up with better crafted questions," McGrath added, "and those are crucial life skills and crucial lawyering skills."

Sacha Pfeiffer can be reached at pfeiffer@globe.com.