Excerpts from my August Plaintiff magazine article: “The Vanishing Civil Jury Trial: Could Jury Consultants and Mock Trials Be Used More Creatively to Solve Cases?”
The American Board of Trial Advocates magazine Voir Dire, recently reprinted a very interesting and extensive study about the fact that we are trying fewer jury trials in our civil cases. The article, “The Vanishing Civil Jury Trial”, outlines Chief Judge Yvette Kane of the U.S. District Court for the Middle District of Pennsylvania Task Force study in June of 2007. Their extensive study cites many of of the same issues I have discussed in the past.
Challenges Facing Civil Jury Trials
- ADR Processes: increasing use of alternative dispute resolution (“ADR”) processes.
- Discovery: the increasing depth and cost of discovery.
- Delays: delay in resolution of cases by jury trial.
- Uncertainty: the uncertainty of jury verdicts.
- Motions: increased filing and granting of dispositive motions, most particularly summary judgment motions
- Experience: the lack of trial experience by both lawyers and judges (and the attendant reluctance to try cases).
Recommendations for Resolution
The article sets forth 14 separate recommendations for resolution of this problem, most of which deal with systemic civil discovery rules relating to discovery, use of dispositive motions, modernization of juries (e.g., allowing them to take notes, giving written copies of readable and understandable jury instructions to jurors) and other procedural issues. Their most provocative recommendation was the expanded use of summary jury trials in appropriate cases. This would allow the courts and the litigants to work together to have shortened jury trials and perhaps even advisory verdicts in more complex cases.
Important Solutions: Jury Consultants, Mock Trials, ADR Organizations
The use of jury consultants, mock trials and ADR organizations may help us evaluate and resolve our matters short of the traditional, expensive, and often times uncertain courtroom jury trials.
- Negative Attitudes: in this era of strong juror attitudes about attorneys, judges, expert witnesses and other jurors that can affect the outcome of cases, jury consultants are critical to help us ferret out the negative attitudes
- Experience: the focus groups serve another important function: They act as a rehearsal for the real trial. If plaintiffs’ lawyers are not getting enough real jury trial experience, then the mock trials set up by a good jury consultant can help overcome the lack of actual courtroom experience
Cooperative Solutions: Evaluation and Resolution of Cases
How might the mock jurors and jury consultants help us evaluate and resolve cases? It is obvious that the defense is doing the same thing that we are with focus groups and mock jurors, and we often times share our results in the confidential ADR settings. In many cases, we certainly could agree to summary adjudication if we had the appropriate judicial cooperation.
Could we find a way to use this important and expensive jury evaluation information cooperatively with the other side? Couldn’t we use our mock jury experience as a way to occasionally substitute for an actual jury trial? It does seem that the subject is worth exploring with the major ADR groups and jury consultants. I certainly believe our local, state and national plaintiffs organizations should be involved, and ABOTA’s resources could be of great help.
Creative Resolution
I am searching for solutions as the future is upon us, now. We need some creative thinking to resolve the problems created by fewer jury trials and I am vitally interested in any ideas that the plaintiff or defense bar has along these lines. I hope to hear from some of you soon.
To learn more about J. Gary Gwilliam's book Getting A Winning Verdict In My Personal Life: A Trial Lawyer Finds His Soul , please
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As I was doing a little research for a follow-up article about AB 2284, I recalled reading Gary Gwilliam’s Plaintiff Magazine articles on the “Vanishing Civil Jury Trial.” California’s Expedited Civil Jury Trials Act may be exactly the answer he was searching for. This could indeed be a great opportunity for Trial Lawyers on both sides of the bar, and their clients. My article is posted at: http://trial-technology.blogspot.com/2011/01/ab-2284-expedited-civil-jury-trials-act.html
Good article, Ted. I’d like to talk in more detail so will reach out offline.