“The jury system is the handmaid of freedom.”
The Case of the Disappearing American Jury
On Monday evening, August 10, I had dinner, one-on-one, with one of America’s premier trial lawyers. What he told me stunned me.
We’ve known each other for almost 50 years. I have no reason to believe that what he told me is proprietary. But, just to make sure, I asked him to send me documentation for our discussion. He obliged the next day. I’m going to present it here.
Background: he is a member of two organizations composed of trial lawyers. These organizations are not open for membership to lawyers on a walk-in basis. Both of them are by invitation only. One of them is the American College of Trial Lawyers (under 500 American and Canadian trial lawyers). The other is the International Academy of Trial Lawyers (500 American lawyers). Almost no one belongs to both. There are about 1,250,000 American lawyers.
Next month, he will become one of 20 regents of the American College of Trial Lawyers. For four years, he will serve as the screener for all trial lawyers recommended as members from California, Arizona, and Hawaii. In short, he is at the very top of his profession.
Here is his message: the profession is dying in the United States. Along with it, the civil jury system is dying.
He gave me this statistic. In 1979, in the state of California, there were approximately 5,000 civil cases that went to trial in front of a jury. Last year, it was about 1,000 cases. The population of California had more than doubled in this period. So, the number of civil cases that go to trial has been reduced by 90% in terms of population. These are civil cases, not criminal cases. These are cases that go before a jury in order to settle a matter that is not a criminal matter.
He believes that the occupation of civil trial lawyer is about to disappear.
He sent me an article that appeared in volume 39 of Litigation (Spring 2013). The title: “From the Bench. Obituary: The American Trial Lawyer, Born 1641 – Died 20??” It was written by Judge Mark W. Bennett, U.S. District Court (Northern District of Iowa). It was done as satire.
The American trial lawyer (ATL), who, in innumerable ways, enhanced the lives of so many Americans and made the United States a fairer, healthier, safer, more egalitarian, and just nation, passed away recently. Although a precise age is uncertain, ATL is believed to have been at least 371 years old at the time of death.The cause of death is uncertain. A blue-ribbon panel of forensic coroners performed one of the most extensive autopsies in history. They were unable to determine the precise cause or time of death. However, they were unanimous in their conclusion that death was not sudden. In fact, ATL had been placed on the Endangered Species List a decade or so before death. The autopsy determined that ATL most likely died from a long-term, progressive illness that began more than 40 years ago and was exacerbated by a slow, debilitating virus related to multifocal leukoencephalopathy–more commonly known as Celotex-Anderson-Matsushita Syndrome–a disease of the central nervous system.
It went on in this vein — a jugular vein, as Mad Magazine used to put it.
. . . the vanishing civil jury trial–causing a massive drain of healthy red blood cells that were the lifeblood of ATL; a genetic mutation of the civil justice system that came to be known as “ADR”; the tragic inability of young offspring of ATL to obtain an essential growth hormone–trial experience; the inability of courts to implement reforms that would have reduced the enormous costs of getting cases to trial and enabled ATL to go off life support; a persistent metastasizing growth of the parasitic belief that trial judges should be “litigation managers” and that jury trials are a “failure of the system”; and the media, which, with the speed of an aggressive glioblastoma, spread inaccurate information about allegedly frivolous lawsuits and verdicts like the McDonald’s “hot coffee” case.
It ended with this, which is not funny.
The jury system is the handmaid of freedom. It catches and takes on the spirit of liberty, and grows and expands with the progress of constitutional government. Rome, Sparta and Carthage fell because they did not know it, let not England and America fall because they threw it away.
What is really at stake here? It means that people who want to get a case settled in front of a jury are probably not going to be able to do it, and if they do it, it will only be because somehow they hired someone to defend them who has experience as a trial lawyer. There are almost no lawyers left who can do this.
My friend has tried 130 civil trials. Today, it is difficult to locate a lawyer who has tried a dozen.
He sent this article: “The Death of the Civil Trial.” It was published in The Daily Journal (May 8, 2014). The author is Mark P. Robinson, Jr. Here are highlights. In 1962, juries resolved approximately 5.5% of federal civil cases. Two decades later, this was down to 2.6%. Two decades after that, it was down to 1.2%. It has been under 1% ever since 2005. Between 1992 and 2005, the number of civil trials fell 52%, from 22,451 to 10,813. Individual states show similar declines.
Meanwhile, the time in court kept increasing. Between 1962 and 2002, the percentage of civil trials lasting more than four days grew from 15% to 29%. In California, which has the longest civil jury trials in the United States, the average was almost 9 days, while the national average was 3.6 days. During this period in California, 51 courthouses were shut, meaning 205 courtrooms.
This is going to undermine the entire common-law tradition. The author was quite clear on this point. A nation needs jury trials to provide the legal groundwork for the normative standards of the justices. But the number of these trials is declining.
My friend described the options today for somebody who is involved in litigation. It is highly unlikely that the litigation will ever go to trial. If it is involved in any way with automobile accidents, there is zero likelihood that it will go to trial. So, for somebody who wants justice, there are three options. First, the plaintiff and the defendant will both be represented by a lawyer who has trial experience. Each of the lawyers knows that he will be challenged in court if he cannot get a settlement outside the courtroom. Second, one of the lawyers has had trial experience, and the other has not. This will put the second lawyer at a tremendous disadvantage if the case ever goes to court. Therefore, his lawyer is willing to settle. Third, neither of the lawyers has any courtroom experience. Both will want to settle. A jury will have nothing to say about the outcome of the case.
My friend said that only in the first case is justice being served. Because so few young lawyers get courtroom experience in front of a jury, there are not many law firms that can supply a lawyer to a client who is capable of taking the case into a courtroom in front of a jury.
In discussing the matter with him, I raised the point that the jury system is the last institutional barrier in between individual citizenship and bureaucratic government. He agreed with me. With the rise of administrative law, which Harold Berman warned against in 1983 (Law and Revolution) as the greatest single threat to Western liberty, we need juries, and we also need lawyers who know how to argue in front of juries. Both are in decline.
My advice: in a case that matters, hire a law firm that can supply you with a person with trial experience. He had better have at least a dozen trials under his belt. This will cost you.
Second, he sent me a sheet on how to persuade juries. If you ever go to trial, your lawyer had better read it. My friend hands this out to the young lawyers in his firm. He also hands it out to his clients, who will be on the witness stand. I recommend that you print this out.