Newer lawyers are finding it increasingly difficult to gain trial experience as the opportunities to learn have dwindled. This issue has caught the attention of the Massachusetts Superior Court and led attorneys of all experience levels to seek additional methods to train newer lawyers in the ways of the courtroom.
“Traditionally, becoming a trial lawyer has been a classic apprenticeship. Newer lawyers had to hope for the good fortune of working for a more senior lawyer who would allow them to carry their bags and learn the craft of being a trial lawyer, sort of through osmosis,” said Christopher Kenney, co-founder of Kenney & Sams, P.C. and MBA president-elect.
Kenney recalled how law firms used to run “very involved” summer training programs for second-year law students, programs that would end with several students landing positions in litigation departments once they completed their third year of law school.
“I was one of 15 lawyers that started [at a firm] on the same day back in 1990, and the first year I was there was essentially all education, teaching us how to walk and talk like litigators and getting into trials,” he said. “But there’s been a sea change. Summer programs are few and far between now. Many law firms now rely on lateral hiring of experienced lawyers as opposed to taking a new lawyer in and engaging in the burden and the expense of an apprenticeship program.”
Immediate Past MBA President Jeffrey Catalano, a partner at Todd & Weld LLP, gained his early courtroom experience working as an insurance defense attorney at a time when insurance companies would pay for young attorneys to second-seat trials, a practice they discontinued in the late 1990s.
But the decline in programs is not all that has changed. Marsha Kazarosian, partner at Kazarosian Costello LLP and a former MBA president, noted that the rise in dispute resolution has caused a decline in the overall number of cases that go to trial, particularly in the case of civil suits. In fact, only about 1.5 percent of all civil cases in Massachusetts make it to trial.
Citing the decreased number of cases on its docket, the Massachusetts Superior Court recently issued a policy statement encouraging attorneys to “take affirmative steps to promote the participation of less senior lawyers in courtroom proceedings.”
Of course, this problem is hardly unique to Massachusetts. With a similar decline in the number of cases going to trial nationally, the American Bar Association considered a proposal to get more junior lawyers into the courtroom at its annual meeting in August.
“You can’t blame the attorneys for the lack of experience. It’s just the way things have evolved. But I do bemoan the fact that there aren’t as many well-experienced, learned trial lawyers as there used to be,” Kazarosian said. “But I think today, just like in any other day, if you want to be a good trial attorney you can be one. It’s a little more difficult nowadays, but there are ways to learn if it’s something you really want to do.”
Pro bono and more
One such way is for newer lawyers to take on any pro bono work they can find, a suggestion offered by nearly every person interviewed here, as well as going to court on their own to observe and learn from other attorneys.
Kazarosian, Catalano and Elizabeth Dillon, an associate at Cetrulo LLP and a member of the MBA’s Young Lawyers Division board, each recommended CLE classes, including those offered through the MBA, though Kazarosian added that “there’s nothing like being on your feet in the courtroom. I don’t think there’s any experience that’s going to substitute for that.”
Dillon strongly recommended participating in a Lawyer for a Day program.
“That’s really great because you’re just going in for one day — in housing court, family court [or] consumer credit kind of cases in the district court — and you’re just representing people for that limited basis,” she said.
Dillon and Nicole Paquin, an associate at Boyle | Shaughnessy Law and a member of the MBA’s Young Lawyers Division board, felt that they were able to gain ample courtroom experience by starting out in smaller firms where fewer attorneys in the office meant more opportunities for everyone.
Dillon recommended that newer attorneys find small ways to be involved in cases that can lead to serving a bigger role. With a discovery dispute, for example, “if you make it a point to be in charge in the discovery responses and promulgating the discovery, and when you get your answers back, if you take it upon yourself to volunteer to go through all of the responses and figure out what’s still missing, and to do the 9C conference and to write a letter to the other side and try to resolve it, if it comes to the point that you have to file a motion to compel, you can easily say, ‘Can I write the motion to compel?’ If you’re the one that wrote the motion to compel, it is more likely they will let you be the one to argue the motion to compel,” Dillon explained.
She recommended that by starting small and figuring out how to get involved in the case at some level, “you can really build a case for saying, ‘Hey, at least let me come with you [to court].’ … Even if you’re not the one that gets to argue it, at least you get to go along and watch. And if you do that a few times, people will be more comfortable letting you argue it.”
Nearly all attorneys interviewed mentioned the importance of mentorship in the careers of newer lawyers, particularly when it comes to gaining courtroom experience.
Kenney knows firsthand the influence a good mentor can have on a younger lawyer, as he had “one of the finest mentors a guy could hope for” in Robert Muldoon, a partner at Sherin and Lodgen.
“I’ve never forgotten how much his mentorship of me benefited my career, and I’ve always thought it’s important for those of us who are partners at law firms now to give back to newer lawyers,” said Kenney, who, this summer, will serve as director of the International Association of Defense Counsel Trial Academy, which, for one-week, will provide training on the basics of trial practice.
Paquin agreed that her career has benefited from strong mentorship.
“[When I first started] I had some more senior attorneys who were good about bringing me along to trial … I think I’d been practicing just a few months when I second-chaired a medical malpractice trial as a plaintiff’s attorney. It was a really great experience,” recalled Paquin, who said she still “often” finds she is the youngest attorney in the room for certain proceedings.
Paquin added that it’s not necessarily enough for experienced lawyers to simply put younger attorneys in the room; they have to trust them.
“There’s an issue when young attorneys go to certain types of hearings or pre-trial conferences if they don’t have full authority in the case to make decisions,” she said. “So I think in addition to this issue of needing young attorneys to go out and get trial experience, I think there also has to be some trust that the associates can make decisions. Because without decision-making power, having [younger attorneys] there can just hinder the whole process and frustrate people.”
Catalano believes being a mentor and bringing associates to court is beneficial not just for newer attorneys, but for more experienced ones as well.
“It’s helpful to have a second set of eyes, another brain on the case while you’re trying it, someone who can look at the jury, take notes, watch the judge, pick up on the nuances of trial that are so, so important,” Catalano said.
He also framed the issue of newer lawyers struggling to get courtroom experience as one with potentially wide-ranging consequences.
“The obvious [problem], of course, is that folks are not developing the kind of skills that they need to become really good advocates when they get into court … and then long-term, you want judges that have reasonable trial experience,” he said. “If you haven’t had the opportunity to try as many cases, it’s a factor in determining your qualifications for the bench.”
Regardless of how newer lawyers get their experience, it is imperative they find opportunities to get in the courtroom, said Kenney, who believes that most of the skills necessary to become a great trial lawyer are “intangibles” like confidence, presence, and energy — in other words, things that can only truly be developed by becoming more familiar with a courtroom setting.
Catalano echoed this belief.
“You’re going to feel like [the courtroom] is foreign territory until you’ve had enough trials that you feel like, ‘I know what I’m doing here,’” Catalano said. “I once had a partner who said that the day you walk into the courtroom and say to yourself, ‘This is my place, this is my home,’ is the day you’ve reached that level of confidence where you really can put on a great trial.”
Superior Court urges participation of ‘less senior lawyers’
On Friday, Dec. 1, 2017, the judges of the Superior Court voted to adopt the following
policy statement regarding participation of newer lawyers in court proceedings.
SUPERIOR COURT POLICY STATEMENT
In our current Superior Court docket, fewer cases go to trial than in the past, thereby reducing the opportunities for less experienced counsel to have an active role in a courtroom.
This is especially true in our civil docket. Without the chance to speak in a courtroom —
whether to argue a motion before a judge or to address a jury at trial — future generations of litigators will be less equipped to represent their clients effectively and to advance in their profession.
We acknowledge the guidance of the American Bar Association, which urges courts to
implement plans that create opportunities for new lawyers to gain meaningful courtroom experience. American Bar Association, House of Delegates Resolution 116 (August 2017).
The Superior Court therefore encourages lawyers with cases filed in our civil docket to take affirmative steps to promote the participation of less senior lawyers in courtroom proceedings. Those affirmative steps could include, but are not limited to, encouraging participation of relatively inexperienced attorneys in initial scheduling conferences, status conferences, hearings on discovery and dispositive motions, and examination of witnesses at trial.