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| Stephen Susman |
I hope I don't have to convince readers that trials are becoming rare in our state and federal courts. In fact, for 55 years the percentage of civil cases disposed of by trials in all federal courts has continuously shrunk. I think everyone, lawyers and nonlawyers alike, would agree that the disappearance of jury trials, indeed trials of any type, is a bad thing.
In retrospect, we should have called our center the "Civil Trial Project" because no sooner did we begin looking at the statistics, we found that nonjury civil trials were disappearing faster than jury trials. This pattern exists in virtually every state and federal court around the country.
One of the biggest dangers to the civil trial's survival is that nonlawyers are unaware of its infrequency. A recent study we conducted shows that 80 percent of the public has no idea that the number of jury trials is even declining. Of course, we could endlessly debate why this is happening. In my view, there are at least 17 reasons for this — and likely many more.
Some of these factors are very difficult, if impossible, to change. They include the advent of exhaustive pretrial discovery; procedural screens such as Twombly,[1] Matsushita[2] and Daubert[3]; the focus on efficiency in disposition by managerial judges; and the use of multidistrict litigation; as well as legislative changes, including the enforceability of arbitration, elimination of causes of action and other tort reform measures such as capping damages.
Other factors responsible for the decline of jury trials can, however, be changed with your help: expense of discovery; delay in getting to trial; judicial insistence on mediation as precondition for trial date setting; the lack of real trial lawyers; repeat litigants' perception that juries exclude educated and skilled citizens and that juries are deprived of decisional tools available to judges and arbitrators; and the public's ignorance of historical reasons for jury trials and public dispute resolution.
If we wait to take action until we identify and prioritize all of the causes, trials might in the meantime become extinct. So today I write about the causes that we can do something about. I now turn to those things that you can help us accomplish.
Expense of Discovery
The expense of discovery may explain why many disputes are settled rather than decided, either in trials or arbitration.
Most experienced trial lawyers report that the expense of discovery today is largely the result of e-discovery and that it is roughly the same for a jury or bench trial. That probably explains why bench trials have declined as fast as jury trials. They also report that the expense of discovery in arbitration is not that different and is frequently offset by having to pay three arbitrators $750 per hour — a strong disincentive for them to dispose of the case prior to writing a reasoned award.
Experienced trial lawyers also report that the biggest component of e-discovery expense is self-inflicted: clients insist that, prior to production, their lawyers review all documents individually for relevance and privilege.
Many bench and bar committees are working on curbing discovery expense and the litigation funding industry has arisen to cope with it, so this is not a top priority of the Civil Jury Project. I recommend that judges require the lawyers in a civil case to at least consider the pretrial agreements that I have been promoting for more than 20 years.[4] I'll readily concede that the proposed agreement on e-discovery is radical: All emails for two years, to or from five identified custodians on each side, would be produced without regard to subject matter as long as they did not have an attorney's name on them. There would be no need for a relevance review prior to production. A protective order would assure that nonrelevant documents could not be disclosed and would have to be returned upon discovery.
Delay in Getting to Trial
Virtually all trial lawyers, on either side of the docket, believe that a definite and early trial date set very early in the pretrial process is the best way to control discovery expense and resolve any dispute. The courts that do this seem to end up trying more cases while at the same time clearing off their dockets cases that don't need to be tried.
Judicial Insistence on Mediation as Condition for a Trial Setting
Mediation serves the useful purpose of making lawyers spend a day with their clients evaluating their case. And that should certainly happen before a trial begins. But I believe it should only be ordered after the court has ruled on dispositive motions and after a trial date has been set. Otherwise, it forces the parties to settle because they can't foresee ever getting to trial. And while we are on the subject of mediation, I hope we can convince mediators, many of whom are former judges, not to coerce settlements by telling the parties that jury trials are just a crapshoot.
Lack of Lawyers Who Know How to Try Cases
The Civil Jury Project is involved in several projects in this area: We are encouraging judges to enter young lawyer rules that assure oral arguments on motions that will be argued by inexperienced lawyers and, even better, give priority trial settings where the court knows that a young lawyer will be playing the role of lead trial counsel; we urge courts to publicize the need for lawyers to handle "trial ready" pro se cases; we have asked our judicial advisers to suggest ways to notify the bar of important courtroom performances; and, finally, we have commitments from our judicial advisers that they will use mock trials to critique the performance of young lawyers.
Perception That Educated and Highly-Employed Citizens Avoid Jury Duty, Lack the Decisional Tools Available to Judges
This is the area where we have been most active.
We have hosted 20 jury improvement lunches in major cities around the country. Each has been attended by more than 75 lawyers and enough judges and jurors to sit at each of the tables and appear on panel discussion. Videos of all past lunches can be found on our website.
We maintain a second website called WeThePeopleWeTheJury.com whose purpose is not only to give discharged jurors a place to go to talk about their experience, but also to encourage those who have been summoned to show up. We use cards handed out by judges to jurors as they discharge them to attract former jurors to our website to blog about their experience.
We have also developed a questionnaire, which is designed to be given to jurors at the start of the trial and collected at the end.
To improve jury trials, we are urging judges and trial lawyers to at least try certain innovations that can be implemented right now and at no expense or need for any rule change. Each can make jury trials less expensive and more reliable.
The following are 10 important innovations.
Limiting the Length of Trial
The biggest objection to jury trials is that they are too expensive. The easiest way to reduce their expense is to set firm trial dates and to set tight limits on the length of the trial. The single biggest complaint we hear from jurors is that the trial lasted too long and was too repetitive. Every lawyer who has participated in a time-limited trial reports that it actually made for a better trial. Shorter trials mean fewer high caliber jurors get excused for hardship. Without time limits, the most complex cases last the longest and are tried to the least qualified jurors. No wonder corporate executives complain that juries are not composed of their peers. After getting the input from the parties, the court should set a firm trial date and the length of the trial, both at the start of discovery. Discovery should be proportional to the time allowed for trial. Mock trials and all empirical studies of actual trials suggest that the outcome is not affected by the length of the trial. We have found no rule or decision that limits the trial court's power to limit the length of trial. Even without agreement of the parties, the court should impose time limits
Jury-Posed Questions
We have listened to the suggestions of hundreds of jurors voiced on our website We The People We The Jury, or at jury improvement lunches or in response to post-service questionnaires administered by trial judges. The single most popular innovation is to allow them to ask questions of witnesses. This practice is nowhere prohibited and increasingly authorized. The most common method is for each juror to be given a blank piece of paper on which she may write questions. The papers are collected at the end of a witness's testimony before the witness leaves the stand. If any contain a question, the judge shows it to the lawyers at the bench and, if there is no objection, asks the lawyer who called the witness to ask the questions. Opposing counsel may cross. In my experience, the questions are rarely objectionable and usually quite insightful. Little time is wasted. Jurors report that it keeps them engaged and awake. I have heard some judges suggest that it may provide the lawyers too much information on how the jury is leaning. My response is what's wrong with that?
Interim Statements by Counsel
In a trial where each side is given 15 hours, the court could allow each side to use up to 5 percent of its time or 45 minutes to offer explanations to the jury immediately before or after examining any witness. No such explanation could last more than 5 minutes. This allows the lawyers to keep the jurors awake, engaged and more informed. Jurors we have asked suggest it would be helpful. I have never been able to get the other side to agree to this, perhaps because whenever I suggest it, they suspect that I have special experience or expertise at doing it. If this practice is to gain traction, it's because judges have the courage to experiment with it.
Other Innovations
Further, other innovations include: substantive questionnaires to the jury pool before voir dire; eliminating side-bars; substantive instructions at the start of trial; insisting on use of pattern instructions if available; writing plain English instructions; use of juror notebooks; and providing each juror a copy of the instructions and verdict form.
Public's Ignorance of the Historical Reasons for Jury Trials and Relevance of Those Reasons Today
We need to teach the public that the right to trial by jury in civil cases was so important to our founders that they ratified the Constitution only on the condition that an amendment be added that expressly protected it, and that they insisted upon this in spite of their recognition that jury trials would be more expensive, more uncertain in general and more dangerous in particular to wealthy defendants than bench trials.
Our survey of the public shows that it is only after a respondent is informed that the right to a civil jury trial is protected by the Constitution, that she expresses concern that jury trials are in decline.
We also need to explain that only public jury trials send a message about what citizens think of certain conduct and only public dispute resolution creates rules of law.
In sum, we must be proactive in our attempt to slow and stop the disappearance of jury trials. Please join me in this important endeavor.
Stephen D. Susman is a partner at Susman Godfrey LLP and the executive director of the Civil Jury Project at NYU School of Law.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Bell Atlantic Corp. v. Twombly
, 550 U.S. 544, 127 S. Ct. 1955 (2007).[2] Matsushita Electrical Industrial Co. v. Zenith Radio Corp
., 475 U.S. 574, 106 S. Ct. 1348 (1986).[3] Daubert v. Merrell Dow Pharm.
, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).[4] They can be found at TrialByAgreement.com.