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President's Message | October 2017 Newsletter

 

A funny thing has happened to civil trial lawyers. Trials are largely disappearing and are generally seen only in
movies and TV shows. Rarely do they play themselves out in our courts.

 

While no one is claiming trials will soon become extinct, the reason for the remarkable decline in both civil and
criminal jury trials is worth exploring.

 

  In 2015 NYU School of Law established the Civil Jury Project (“CJP”) to conduct an empirical study as to the causes of the decline of the jury trial and the consequences for the legal system. The CJP was funded by a successful trial lawyer and it enlisted a distinguished roster of academics, jury consultants and judges. They surveyed lawyers who actually try cases in state and federal courts around the country and asked them how their practices have changed, what they perceive as the cause and what they think can be done to improve jury trials.

 

  Although the results are still being analyzed, the preliminary findings are interesting. The decline of jury trials has impacted lawyers’ practices dramatically. The majority – 65.8% – of all respondents worked on one or fewer cases resulting in jury trials during the previous year. Likewise, over the past five years, 60.9% of respondents have worked on one or fewer cases that resulted in a jury trial and an astounding 15.1% had zero jury trials within the past five years. Keep in mind that the respondents surveyed were actual trial lawyers who, on average, had 30 eligible jury cases per year.


In an effort to determine the causes for the decline, the respondents were questioned as to why they believed their cases did not go to trial. The top reasons included the uncertainty of a jury’s ability to decide liability and damages, the costs of litigation and pressure by the courts to resolve the case. Interestingly, mandatory ADR was selected as a reason for the decline of their jury trials by only 20% of the respondents while informal “pressure” or “urging” of the court was cited by over 30% of the respondents.


After giving the reasons their own cases did not result in jury trials, the respondents were asked to describe the main reasons they believed the number of civil jury trials is declining. The results were similar. The top reasons being the general cost of litigation and the risk of uncertain outcomes. However, more respondents listed ADR as a reason than those who listed judicial pressure.


The take away from this survey is settlement removes the risks, costs and uncertainty for all sides. Simple enough. Of course, the question really becomes if litigants want to settle their cases should anyone offer any advice on how to prevent them from doing so? Trial lawyers may enjoy trying cases but the case is about the client and what they want. Most want to minimize risk, cost and uncertainty.


Nonetheless, when asked what could be done to reverse the trend in the decline of civil jury trials, over 50% of the lawyers surveyed answered “not sure” or “don’t know.” The remaining respondents suggested limiting discovery, banning or limiting mandatory ADR and dissuading judges from pressuring litigants to settle cases. None of these suggestions appear to be likely or even helpful. However, there were three interventions which 50% polled agreed would improve jury trials. These recommendations were 1) allow jurors to take notes 2) give each juror a copy of the instructions and verdict form 3) provide substantive instructions of law before closing arguments rather than after.


All the current trial bar can do is to be ready on the odd chance a case is actually tried. A more interesting question is how will the next generation learn how to try a case when everything settles. When I started in the early 1980s, five to seven jury trials a year was the norm. It was easy to get experience. Now, I routinely meet young partners at prominent firms who have tried less than a handful of cases. How can they get the experience they need?


Maybe the best place is the Federal Court Pro Bono Program. This program allows lawyers to get on their feet, argue motions and participate in a jury trial. Some are hesitant to utilize this program as they are leery of Federal Rules and worry their lack of experience will annoy Federal Judges. Partners are leery of this program because associates’ time will be spent on non-billable work.


I strongly urge young attorneys to consider this program. The Federal Judges and their staff are extremely
helpful. They are grateful for attorney participation and understand the potential lack of experience. Clients are
even more grateful. As for managing partners, you have to ask yourself - is having an associate spend 40 hours on
a pro bono project that provides invaluable experience worth it to your firm and its clients? It is. There is no doubt. Make the commitment.


Contact Deputy Clerk Nicole Eallonardo for Pro Bono Appointments at (315) 234-8563 or Operations Chief Deputy Dan McAllister at (315) 234-8505. You will be glad you did.

 

James E. Hacker, Esq.

ACBA President

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