By Dr. Ken Broda Bahm:
Going to trial is a lot like going to Disneyland! But only in the sense that it is very expensive, and you will spend a lot of your time waiting. The expense and the delays of the trial process are a common focus for criticism and a big part of the reason why the vast majority of disputes never get all the way to trial, but instead find resolution through settlement or summary judgment. In a recent article, Andrew Pollis (2017), Professor at Case Western Reserve University School of Law, turns a critical focus on what he calls the “pretrial industry,” or the practice of making use of procedure and discovery to inflict maximum pain (cost and delay) on the other party to the point that settlement becomes a better option than an actual trial on the merits. Quoting Judith Resnik, the article notes that “the pretrial phase of a lawsuit has become ‘a stage unto itself, no longer a prelude to trial but rather assumed to be the way to end a case without trial.'”
Pollis recommends a number of reforms to, as the title puts it, “bust up the pretrial industry,” but one part of the solution in particular caught my eye. He recommends that courts and litigants make greater use of a leaner and quicker tool: the summary trial. A summary trial is a form of dispute resolution that is a lot like the research mock trial often conducted by one side to get ready for trial, only like the actual trial, it involves both parties and a judge. If you have never participated in one, however, you are not alone. While judges around the country have the discretion to allow, encourage, or require a summary trial as a settlement step, the tool remains relatively rare. Pollis writes that there are some reasons for that — a lack of awareness, sure, but also some structural features of the way summary trials are organized that makes them less attractive for litigants. In this post, I will draw from Professor Pollis’ article in discussing what a summary trial is, why it is underutilized, and what ought to be done to make the summary trial a more common tool in dispute resolution.
What Is a Summary Trial?
A summary trial has a few common qualities:
- It is generally a one-day exercise
- The exercise includes summary presentations (but generally not witnesses) from each party
- Jurors are drawn from the actual jury pool
- The trial is presided over by a judge or magistrate to keep the presentations fair, appropriately general and realistic
- It produces a nonbinding advisory verdict
- It is conducted with the goal of encouraging resolution prior to trial
Why Aren’t They Used?
Pollis notes that, while they are allowed in an estimated quarter of U.S. jurisdictions, actual summary trials remain scarce. He focuses on two main reasons for that. First, it is generally believed that summary trials are most useful after discovery is complete, and by the time the parties make it all the way to that point, they reason, “Why not proceed to full trial?” After all, they’ve spent months or years gathering information, and they’ve already made the investment, why at that point would they settle for a truncated summary trial over a trial that is long enough to permit the use all of that information?
The second reason why summary trials are underutilized has to do with a lack of consequences. Parties can just ignore the result and move on, so the party or parties who are trying to exert maximum pain, inconvenience, and expense as a way to put more and more pressure on the other side, can just continue to do that, and even use a summary trial as one of the tools for those purposes. So the lack of any consequences for ignoring the result causes parties to not see a clear point to the exercise in the first place.
What Would Make Them More Useful?
Two solutions are emphasized in Pollis’ article. First, he says, “Hold them earlier.” Because summary trials are not supposed to test all of the fruits of discovery, there is no reason to wait until discovery is complete, and no reason to wait until the case is “trial ready” in the real world. A summary trial is a way to get juror reactions to the main story and broad themes of each side, and that is frequently known early on. Some things obviously will not be known without discovery, but as the large number of party-sponsored early mock trials and focus groups will attest, it is possible and useful to gain broad-based feedback at an early stage.
The second solution is to apply risk-based fee shifting. What that would mean, Pollis suggests, is that if a single party withholds consent to resolve the dispute following the summary trial and does not achieve a result that is better than the advisory verdict, then the judge has the discretion to make them bear the other side’s costs between summary trial and trial.
Ultimately, What is the Advantage to Summary Trial Over Other Forms of ADR?
The advantage to resolving disputes with the help of a summary trial is that it recovers the role of the American civil jury. Instead of resolutions based solely on negotiation, or based solely on the decisions of elite judges, the decision will be based on the views of average citizens in your venue reacting to the story you tell. The country’s founders believed that this practice served a democratic role so fundamental that it needed to be included in the bill of rights. Resolutions made through more common use of summary jury trials could return us to a focus on advocacy, and a focus on resolving factual disputes on their merits, not purely on procedure and the pressures of litigation. Pollis concludes:
Requiring parties to engage in a summary jury trial at the outset of litigation would give them an opportunity to hear an objective reaction to their claims and defense before the pretrial industry takes its toll. It would empower them to make better-informed decisions about proceeding with the lawsuit at a point in time when they have not yet borne the exorbitant costs of litigation. And it would also afford ‘a marginalized plaintiff with the opportunity to tell her story to a judge, jury and decision makers for the defendant,’ thus ‘approximat[ing] the experience of procedural justice provided by a day in court.’
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Other Posts on Trial Innovations:
- Listen to Experience on Juror Questions
- Let the Jurors Take and Review Notes
- Consider Planting a Decision Tree in Your Next Trial
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Pollis, A. S. (2017). Busting up the Pretrial Industry. 85 Fordham Law Review 2097.
Photo Credit: 123rf.com, used under license