Part 1 in the Series
Are Trial lawyers becoming extinct? The disappearance of jury trials in civil cases seems to indicate the possibility that we are a dying breed. I want to explore the causes of this phenomenon with an eye towards suggesting some solutions. In the past, I have discussed some of the causes of this problem:
- Pressure to settle case through mediation
- Expense of trials
- Impact of attorney advertising
- Changing perception of trial lawyers in the eyes of the community
- Impact of more women becoming trial lawyers
Now I want to focus on the role the judiciary plays in reducing the number of cases that are tried.
The judicial emphasis on managing dockets is a point repeatedly driven home during any court appearance. Many judges must manage caseloads of 500 or 600 civil cases. Rather than engaging in contemplative perusal of the filings in a particular case, judges now spend most of their time managing caseloads through case management conferences
Judge’s Role: Adjudicator of Justice or Claims Adjuster?
This pressure to move the cases along and resolve them has changed the judges’ roles from adjudicator of justice to that of a claims adjuster. Think of the last time you appeared before a judge at a hearing. If your experience is like that of most plaintiffs’ lawyers, the parties (mostly meaning the plaintiff) were probably “strongly encouraged” to mediate or otherwise resolve their disputes. It often seems that the judges feel jury trials are time-consuming, unnecessary and something to be avoided whenever possible.
Good Plaintiff vs. Bad Plaintiff
I recently appeared before a judge in Alameda County who complained about having a caseload of 600. After being informed that two of three plaintiffs had settled their cases, he referred to the ones that settled as “good” plaintiffs and the one plaintiff that did not, and was set for trial, as the “bad” plaintiff. Although the judge’s comment was made somewhat in jest, it demonstrates how many judges feel that cases that proceed to a jury trial are “failures.”
The Role of the Judiciary
The role of the judiciary was discussed in an article in Voir Dire magazine, the publication of the American Board of Trial Advocates. Neal Ellis, a trial lawyer from North Carolina, wrote an article entitled “Saving the Jury Trial.” In it, he states:
At least some court observers believe that judges may be using procedural devices to dispose of trial-worthy cases summarily because of the judges’ lack of confidence in jurors’ ability to understand and assimilate the complex technical evidence needed to arrive at a verdict. Most would agree that a jury’s greatest strength lies in making credibility determinations, evaluating demeanor, and sensing the ‘mainsprings of human conduct.’ Yet some fear that jurors are too intellectually incompetent or too gullible to evaluate complex – and particularly expert – testimony.
Rather than submitting such cases to juries, some believe that judges have devised ways to remove these cases from the system by various means including:
- Forcefully managing the case
- Exploiting uncertainty
- Deciding class action issues
- Excluding technical and scientific evidence