By Dr. Ken Broda Bahm:
A number of years ago, innovators searching for ways to take some of the pain, delay, and difficulty out of the jury trial hit upon the idea to boil it down, rein in the discovery, simplify the rules of evidence, and try it to a smaller jury in a single day. For those who work in my field of litigation consulting, this seemed like an extraordinarily rational idea. After all, this is what we routinely do when running a mock trial for a party, so why not create an exercise that could serve as a reality check for both sides? While we cannot fully reproduce all of the details that will come up in a longer trial, we know from experience that even when seeing the three-week version, jurors will still apply essentially the same initial impression and framework that they formed during the one-day version.
The innovation was called a “Summary Jury Trial,” and in the four decades since the notion was proposed, it has gained a minor foothold. Some judges swear by it, and a handful of states (Arizona, California, Nevada, New York, Oregon, and South Carolina) have maintained pilot programs that encourage the Summary Jury Trial as a means of Alternative Dispute Resolution. Suffice it to say, the Summary Jury Trial has not been fully embraced. Some have observed that Summary Jury Trials started to disappear in the 2000’s. Our current and continuing pandemic, though, might provide some new relevance. Given the massive and growing backlog, the Summary Jury Trial may provide a good way to limit in-person exposure times for parties, witnesses, and jurors, moving a greater number of cases along, while providing the “Day in Court” experience that other forms of ADR lack. In a recent article, (Murphy, Miller, Marsh & Bornstein, 2021) a group of academics surveyed 367 judges through the National Judicial College’s “Question of the Month.” The most telling finding from that survey is that fully 86 percent of the judges had no direct experience with Summary Jury Trials. But from those who had, and those who knew of their colleagues’ experience, the survey yielded 134 comments. In this post, I will review the main benefits and drawbacks mentioned, as well as the implications for the Summary Jury Trial as a response to the pandemic backlog.
The Benefits of Summary Jury Trials
The whole idea of a Summary Jury Trial is to save time, money, and court resources. The most commonly-noted benefit in the survey response was that the tool saves those resources by providing a rational and convincing basis for settlement. One response noted, “There have been a few judges who quite frequently used SJTs to encourage parties to rethink their posture on settlement.” Other benefits highlighted the ways a Summary Jury Trial provides the parties with “their day in court” in a way that mediation or other negotiations do not.
The Drawbacks of Summary Jury Trials
The most commonly noted drawback in Summary Jury Trials was not so much a problem with the design itself, but rather was a lack of buy-in by attorneys. One judge noted, “The attorneys, who must consent, have resisted them in favor of traditional jury trials.” Many, it seems, are simply unfamiliar with the idea, or treat it as a fad. Another reason for this lack of buy-in is that attorneys remain unconvinced that they can fully try the case in a short timeframe, and also may not trust the lack of uniformity in the rules and processes surrounding a Summary Jury Trial. In that context, it can be viewed as just another layer in terms of time and resources.
The Road Forward
The Summary Jury Trial likely isn’t perfect. We know from mock trial work that it can matter when details are sacrificed. Still, juror reactions to the basic outline of the story can be essential. If the main reason a case refuses to settle is that one or more of the parties to the suit have unrealistic expectations of what those reactions will be, then the Summary Jury Trial is a tool that ought to be used more often to break that log-jam. The hesitancies that attorneys and clients might have toward Summary Jury Trials are factors that could be resolved through education. Some resources are available. For example, the 8th Judicial District of New York has a Summary Jury Trial Project Website with tools for anyone looking to expedite the docket.
While there are good reasons to consider a Summary Jury Trial in normal times, the massive trial backlog adds greater urgency. As the article authors concluded, “In a time when court resources are strained due to safety stressors and backlogs related to the COVID-19 pandemic, the time could be right for expanding the use of SJTs and further assessing the degree to which they could be effective in maximizing court resources for civil proceedings.”
Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current area of litigation, or a question about your own case, contact me now.
Other Posts on Trial Innovations:
- Expect Attorney Resistance to Online Trial Innovations
- Try a Summary Trial
- Listen to Experience on Juror Questions
Murphy, E. R., Miller, M. K., Marsh, S. C., & Bornstein, B. H. (2021). Understanding the Summary Jury Trial: Perspectives from the Judiciary. U. Ill. L. Rev. Online, 113.