By Dr. Ken Broda Bahm:
There is a body lying on the pavement. It is still twitching a bit, but fading fast. “This was no accident,” says the hard-boiled detective, “this was an attempt at premeditated murder…and it just might succeed.” If instead of “body” we’re referring to the American civil jury, and instead of “hard-boiled detective” we’re referring to a new article in the Yale Law Journal, then the scenario is roughly the same. The analysis, from Yale legal history professor John H. Langbein (2012), notes the dramatic decline in civil trials (now down to two percent of all case conclusions in federal courts and less than one percent in state courts), and ties that trend to a movement from a pleadings-based system in which facts were resolved in trial, to a discovery-based system in which facts are resolved not before trial, but largely without trial. This, Langbein argues, is a consequence of the 1938 Federal Rules of Civil Procedure and the civil jury is fading by design, if not by intent, because the reforms have largely worked. In other words, the American jury didn’t fall, it was pushed.
While these rumors of the civil jury’s impending death may not be greatly exaggerated, they may yet be premature. This is particularly true if we are focusing on the role of popular judgement at a level that is somewhat broader than the formal jury as we have historically conceived it. By expanding our focus a bit in order to account for the potential jury, the expanding use of the mock jury, as well as potential new models such as California’s expedited jury, there is still the chance that the legal vox populi might live to play a role in the future.
The Late Great Civil Jury?
For fans of the American jury system as well as those who work within it, Professor Langbein’s article is a sobering read. Like many other commentators, he notes the sharp and accelerating decline in jury trials, noting that “we have gone from a world in which trials, typically jury trials, were routine, to a world in which trials have become ‘vanishingly rare.'” Unlike other commentators, however, he doesn’t link that decline primarily to the increasing costs of litigation or to the case management orientation of judges. Instead, he views the trend in more systemic terms. Noting that prior to the Federal Rules, trial was often the only way to accurately discover the facts of the case, he argues that the Rules have largely replaced “discovery by trial” with “discovery instead of trial.” While the focus is on what is called “pretrial procedure,” in practice, Langbein notes that it really amounts – in more than 49 cases out of 50 cases, to “nontrial procedure” instead. Based on a review by two Omaha attorneys (Domina & Jorde, 2010), “trial, and particularly trial by jury, is the least-used dispute resolution methodology in America.” Even as the Federal Rules have formally preserved the right to a trial, they’ve also created the conditions in which litigants find it unnecessary and often counter-productive to exercise their right to a trial. Citing Emerson’s ‘build a better mousetrap’ adage, Professor Langbein concludes “The Federal Rules built a better mousetrap: a civil procedure centered on pretrial discovery. Litigants no longer go to trial because they no longer need to.”
Even as every legal organization imaginable has created committees and task forces aiming to save the American jury, the systemic factors that Professor Langbein documents seem destined to persist. That doesn’t, of course, mean that the civil jury will soon, or even eventually, go away. Trials will continue, but those that make the cut are likely to become more and more unusual: cases that are higher stakes and cases that carry some kind of atypical barrier that has made settlement difficult or impossible. And as the matters that go to trial become less representative of cases overall, they’re also less able to serve as examples for the preponderance of disputes that are bound for settlement.
So, that raises a practical question for the great majority of cases that settle out of court: What is the benchmark? The case will settle based on something, and hopefully it is neither an arbitrary point between demand and offer, nor the equally arbitrary point at which the parties simply reach exhaustion. Facing the decline of the conventional civil jury, a future for popular adjudication may lie in finding innovative ways to create that benchmark.
A Continuing Role for Popular Adjudication
Even for those cases that will involve no ultimate jury, there is still a role to be played by the broader notion of public judgment.
1. The Potential Jury as Benchmark
Relatively few cases involve an actual jury, but a far larger proportion still involve the role of a potential jury. This includes all cases in which one side or both are preserving their right to a jury as an option. Like a silent party to the negotiations between the plaintiffs and defendants, the perception of what a jury in the venue would do if it heard the case exerts a strong pull on strategic positioning, case assessment, and settlement offers. The diminishing supply of actual comparison verdicts coming out of the courts provides a reason for attorneys to turn to specialists, and consultants are likely to increasingly fill that role.
2. The Mock Jury as Test
Particularly when dealing with larger or more complex cases, it has become the “standard of care” for a mock trial to be conducted prior to settlement, providing an opportunity for specific assessment to serve instead of subjective judgment. Using three or more juries composed of randomly-recruited citizens from the venue, a mock trial exercise provides a foundation for case risk assessment and often for a settlement offer. Frequently when a project concludes, the mock jurors will ask, “Is it possible for you to let us know what happens when the real jury hears it?” The correct answer is always, “No, we aren’t going to contact you again,” but what I often want to say is, “In all likelihood, you were the real jury…or at least as real a jury as this case will ever see.” And, if you think about it, that isn’t necessarily a bad thing: Whether the state calls in actual jurors or we recruit mock jurors, the case still gets its day in ‘court,’ of sorts, and still benefits from the leveling influence of popular judgment.
3. The Expedited Jury as Reality
One example of the actual court system appearing to draw inspiration from the mock trial method is California’s relatively recent experiment with a simplified and shortened format designed to preserve the option of a formal jury for a class of cases. In 2010, the state legislature passed the California Expedited Jury Trials Act, creating an option that parties could enter into through mutual agreement: A one-day trial with stipulated exhibits and evidence, no appeal or post-trial motions, a jury of 8 citizens with no alternates, and a binding result subject to a high-low agreement. While the model has, up to this point, been used mostly with lower value cases like automobile accidents, the early responses to the method have been quite positive. Users participating in a recent survey (Cheng, 2012) “were very satisfied with their experience, and lauded it for its ability to reduce time and monetary costs for their clients and themselves.” There is no reason that this model or something similar couldn’t be applied to larger cases, and also no reason that mediators shouldn’t simply adopt the approach as part of a private dispute resolution process. As we’ve suggested before, if what is preventing an early settlement is the existence of differing perceptions of what an actual jury would do, why not bring in a mock jury in order to serve as that additional source of information or reality check for the parties and the mediator?
Back in the intensive care ward, the patient – the American civil jury – still isn’t looking so good. The formal role played by average American citizens in resolving civil disputes, unique among countries, definitely had a good run. But now it seems to be swiftly shifting into another role, focusing on fewer and less typical cases, as well as alternate avenues of influence. As the broader dispute resolution system adapts, it appears cautiously possible that a meaningful role for popular judgment will survive.
______
Other Posts on the Role of the Jury:
- The Jury is Out: Make the Most of Your Experience In an Era of Fewer Trials
- Consider the Jury’s Political Role
- Bring the Jury Into Your Mediation
- Break Through the Barriers: The Settlement Series, Part One
______
Cheng, Y. (2012). A Law and Economics Approach to the California Expedited Jury Trials Act. Legal Studies Honors Thesis. University of California, Berkeley. http://legalstudies.berkeley.edu/files/2012/06/Cecilia-Cheng-Sp12.pdf
Langbein, J. H. (2012). The Disappearance of Civil Trial in the United States. 122 Yale Law Journal 522. https://www.yalelawjournal.org/article/the-disappearance-of-civil-trial-in-the-united-states
Photo Credit: RembergMedialimages, Flickr Creative Commons