In the strange heat all litigation brings to bear on things, the very process of litigation fosters the most profound misunderstandings in the world. Renata Adler
The Boston Bar Association (BBA) today issued a report entitled Report of the Boston Bar Association – Task Force on the Vanishing Jury Trial. The subtitle is “Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial Competency among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon.”
Lawyers may be forgetting how to try cases, but they haven’t forgotten how to write. Apart from the 37 words in the title, the full report is 38 pages long. It provides convincing evidence of the long-term trend toward a decline in jury trials (in both federal and state courts), and bemoans the fact that lawyers are experiencing this legal epiphany less often than in the past.
While I’m as “up” for a good old rollicking jury trial as the next guy or gal — with its enormous expense, unpredictability, risk of jury nullification, ignorance or disinterest, and stress on all concerned (mostly the clients) — I’m not sure that fewer jury trials is a “bad thing.” I would liken it to dentists bemoaning the lost opportunity to fill cavities. Darn that fluoride, flossing and better hygiene!
Personally, after 27 years in this “business”, I would attribute the dearth of civil trials to the following:
- Clients are far more sophisticated, and they are able to pull the plug (i.e., settle) more often. They are less dependent on their lawyers for the decision to do this. The prevalence of in-house counsel, who can advise more objectively on the issues, helps clients figure out what’s in their best interest.
- Judges are far more willing to issue summary judgment – to decide the case on the papers, without a trial.
- Lawyers are too expensive and, perforce, so are trials. Clients want to avoid that expense.
- Juries are notoriously unpredictable. Nothing new, but the news media has, I believe, made people more aware of this.
- The courts are too slow, and have priced themselves out of the market. Arbitration has become a good alternative to the jury trial – usually (note emphasis) it is faster, less expensive and more reliable in terms of a rational result. And, it eliminates the risk of a time-consuming and expensive appeal.
- Mediation resolves cases a very high percentage of the time, and parties are more sophisticated in electing to utilize it.
Oh, and the “vanishing jury trial” is not limited to the Massachusetts state courts by any means.
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.
Sadly, too many lawyers (you hear their ads on the radio and see them in the legal journals – “courtroom lawyers,” “trial lawyers”) are often as willing to take their clients to trial as generals are to commit their troops to battle.
So, the jury trial is dead, or at least moribund. Long live the jury trial!