Consensus lacking on response to decline in jury trials
By Peter Vieth
Published: July 27, 2011
Tags: Judge Catherine Hammond, Justice Donald W. Lemons, Virginia Bar AssociationPublished: July 27, 2011
HOT SPRINGS–Lawyers and judges lament the decline in the number of jury trials, but find little common ground on what to do about the trend – or whether anything needs to be done at all.
“If you lose the jury trial, the system dies,” said Virginia Supreme Court Justice Donald W. Lemons, expressing a sentiment shared by several others at a Virginia Bar Association session at the group’s summer meeting at The Homestead.
“The public doesn’t know what’s happening. We need a massive education program to tell them,” said David J. Beck, former president of the American College of Trial Lawyers.
But a litigation official at a major regional bank said sometimes it just makes sense to settle cases rather than take them to trial. “If I can buy certainty and finality for something around my risk cost, why wouldn’t I do that?” said Mark L. Booz, Deputy General Counsel at Winston-Salem-based BB&T.
There’s no denying the numbers – there were 1,514 civil jury trials in Virginia in 2000, but only 592 in 2009, according to figures from the National Center for State Courts. That’s a decline of nearly 61 percent.
Litigants are not necessarily trial adverse, however. The number of civil cases heard by judges without juries is on the rise, reported Robert N. Baldwin of the NCSC. “Jury trials are vanishing, but bench trials continue to increase,” Baldwin told the VBA gathering.
Lemons noted the British legal system has abandoned jury trials for the most part. Judges there told him “they are absolutely thrilled not to have to be bothered with them,” he said.
The sentiment may be shared by federal judges in this country. Beck, a leading trial lawyer, said the federal judiciary has adopted a “settlement agenda.” Trials are viewed as a failure of the system, he said.
Another key factor in the decline of jury trials is the expense. With electronic discovery, “costs have exploded exponentially,” Beck said.
Booz, who calls the shots when his bank defends lawsuits, agrees that money is a primary factor limiting the number of trials. His rule of thumb for litigation is that “getting ready for trial is going to be as expensive as what you’ve spent up to that point.”
Besides expense, Booz said the uncertainty of trial and the higher stakes for recent cases mean the bank is often willing to settle.
Despite those factors, Booz said there are some cases he prefers to try. If the other side simply wants too much money, the decision is easy. If there is media attention, bankers might worry that settlement would send the wrong message. The same might be true if there are many similarly situated claimants watching the result.
Booz said some cases he won’t settle on principal. He said he does not willingly pay people who have stolen from the bank or who have made false accusations. He also resists settlement “if the opposing lawyer has been particularly obnoxious.”
“It’s really a seat of the pants, case-by-case determination,” Booz said.
Richmond plaintiff’s lawyer Mark M. Esposito said he sees a sinister trend behind the decline in jury trials. “What we have here is a continuing erosion of fundamental rights by moneyed and political interests [that] aids them greatly in their pursuit of profits and political power,” he said.
Booz disagreed. “I actually think the system is stacked against the corporate interests,” he said, adding that costs of discovery are generally greater for the defense than for the plaintiffs.
Esposito suggested using judge-appointed experts to resolve key issues, replacing the battle of hired guns working for opposing sides.
Lawyers already have tools to limit costs, but rarely use them, one trial judge said. Henrico County Circuit Judge Catherine Hammond said in 12 years on the bench, she has never had a lawyer come into a pretrial conference and propose limiting the number of depositions.
Richmond lawyer Michael W. Smith agreed with Beck that someone should take on the task of promoting the use of juries to resolve civil disputes. “We have lost the support of the public for jury trials,” he said. “We need a spokesperson.”
Whatever the remedy, Beck warned of a social cost if the number of jury trials continues to decline. He said fewer people will be involved in the justice process, and “we stop developing a body of common law that is so essential to developing our system of justice.”
Lemons agreed. “You get disputes resolved outside the courtroom; you get disputes resolved inside the courtroom. But, if you lose the jury trial, the system dies and that’s not good.”
As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.
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