Is trial by jury headed for extinction?

Trend toward settlements is based on mounds of documents and better technology.

January 24, 2014
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Trial by jury has been the backbone of the U.S. legal system since its beginning, but that might not be the case much longer if the trend toward settlements continues to grow.

Since the 1980s, civil cases in the federal court system have seen a dramatic shift from trials to settlements, and that trend continued through the 1990s and 2000s, hustled along by advancing technology, and it continues today.

“The trial has been under siege … for a lot of different reasons that have worked together,” said Ronald DeWaard, partner at Varnum and president of the West Michigan Chapter of the Federal Bar Association.

“One of the main reasons, in my opinion, is technology. The huge expanse of technology and information out there has, in a lot of ways, bogged down the ability to prosecute and present the case.”

DeWaard said that 40 or even 30 years ago, a trial typically would include only a handful of documents — a stack an inch thick would be considered a lot of documents. But today, lawyers are typically dealing with hundreds or thousands of documents for each case, which are likely to include emails and even text messages.

“Just the amount of documents and discovery that you have to deal with before you ever get to a trial are so enormous that the costs are higher and it just bogs the process down,” he said. “That is one of the main things I’ve seen that has made it so expensive, and there is so much to do in terms of presentation that you don’t see a lot of trials.”

In addition to the added expense in the discovery phase of preparing for a trial, there has been an increase in expense for legal services in general that DeWaard expects is another factor.

He also pointed to the perceived risk of a jury trial.

“I think there are concerns by parties over the risks of a jury trial that perhaps weren’t as prevalent before,” he said. “Some of it is perception, but as the system grows less and less accustomed to trials, you have fewer trials.”

Mark Smith, attorney at Rhoades McKee, agreed.

“The bigger the cases you handle, the fewer the cases you take to trial because the stakes are so high and the cost is so much that people settle,” Smith said. “I think about one and a half percent of all the cases that get filed actually go to a jury trial.”

There also has been a push within the legal community toward alternative dispute resolutions and mediation to decrease the number of cases headed to trial.

Smith, who is a court-appointed mediator, sees many cases resolved that way.

“I think we’ve got to fight as a society and as attorneys for this system of trial by jury,” DeWaard said. “I think it’s important that we maintain that.”

DeWaard said he is even seeing more settlements in criminal cases, though not to the same extent as with civil cases.

“If nearly every case is settled, we don’t have a system that’s bedrock is trial by jury,” he said.

U.S. District Judge Robert Jonker agrees trials are an important part of the U.S. legal system.

“The jury system is, in my view, a real gem in our system of governance,” Jonker said. “The twin theoretical roots of the system are deep-seated beliefs. One, that the power of government should always be tempered and limited by the judgment of ordinary citizens; and two, that the best and ultimate source of power in our system is the collective judgment of ordinary citizens.

“A thriving jury system is the natural product of a democratic society committed to the principles of limited governmental power and citizen self-government.”

DeWaard suggested reforms might be in order to begin to increase the number of cases that go to trial, though he notes settlements aren’t a bad thing.

“There are probably ways to streamline the system that could create a scenario so we wouldn’t get bogged down and get cases to trial quicker,” he said.

“I know in other jurisdictions they’ve looked at things — they’ve called them rocket dockets — where certain types of cases move much quicker so you don’t get bogged down with some of this discovery.”

He said potentially limiting the number of documents that can be submitted into evidence could be another option.

Jonker, who also noted that settlements can be beneficial, said cost is a main element.

“One way to encourage more civil jury trials is to work at ways of reducing the costs of those trials,” he said. “The court can help with that, for example, by limiting the time for trial presentations. That's something I do in almost every civil case.”

Thirty or more years of fewer trials have impacted lawyers’ preparedness for arguing cases. In fact, more than 30 years ago when the trend toward settlements began, federal judges noted they were seeing lawyers who lacked the necessary trial experience.

“There was a concern by the chief justice of the Supreme Court (Warren Burger) that trial skills across the nation were slipping,” DeWaard said.

As a result, Western District of Michigan Judge Douglas Hillman initiated the Hillman Advocacy Program with the intent of helping trial lawyers gain the experience Judge Burger said was lacking. Now more than 30 years old, the “learn by doing” program was held again last week.

Lawyers with one to two years of experience were given the opportunity to develop courtroom skills under the guidance of some of West Michigan’s top trial lawyers and Western Michigan District judges, all of whom volunteered their time.

“One of the things the Hillman program is designed to ensure is that people don't avoid trials just because they are afraid they lack the basic skills required to conduct a jury trial,” Jonker said.

According to a description of the program, each of the participating lawyers has the opportunity to conduct direct and cross-examination of live witnesses, played by volunteers consisting of lawyers, paralegals and court personnel, and performs exercises involving impeachment of witnesses and introduction of exhibits. The performances are videotaped and reviewed with the student and critiqued by a faculty member.

“It’s basically a ‘learn by doing’ course, patterned after the National Institute for Trial Advocacy style,” DeWaard said. “You are basically trying pieces of cases and then, in the advance section, you are trying a whole case.”

In addition, the program features two demonstrations in which faculty members deliver closing arguments and conduct direct and cross-examinations for the workshop participants.

“It’s an opportunity for judges to have a direct voice with the practitioners,” DeWaard said. “My perception is that the judges enjoy the program and that’s why they want to participate so fully.”

Western Michigan District lawyers, who eagerly participate, also hold it in esteem.

“It’s not an inconsequential commitment to participate as a faculty member,” Smith said.

The program has been extremely popular, with lawyers from all the major law firms in town participating each year. It has also been recognized nationally.

“Hillman is a really incredibly powerful program that is really almost one of a kind,” said Paul McCarthy, attorney at Rhoades McKee. “It’s just a very significant tool for lawyers to go through and actually learn the process of trying the case, and our firm has always made it a requirement.”

In addition to the Hillman program, Jonker pointed out the Western Michigan District also promotes trial skills through a pro bono appointment program for certain civil cases scheduled to go to trial in which a plaintiff is not represented by counsel.

“This court will appoint a willing private lawyer on a pro bono basis to take the case to trial,” he said. “That allows the plaintiff to have the benefit of counsel, which ultimately helps not only the plaintiff but also the court and usually the opposing parties, too. It also allows the appointed lawyer to have the opportunity to take a case through a federal jury trial and practice the skills learned in the Hillman program.

“When I was a new lawyer back in the mid-1980s, my first two federal jury trials were pro bono appointments in cases like this. I encourage our newer practitioners — as well as the seasoned hands — to take advantage of the pro bono appointment opportunity. It not only helps pro bono clients and the court, it also helps refine the trial practice skills the Hillman program teaches.”

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