More Thoughts on Disappearing Jury Trials

by Stephen E. Chappelear
Hahn Loeser & Parks LLP
sechappelear@hahnlaw.com
Chair, OSBA Litigation Section

Many of you were kind enough to write or call about my column in our last Newsletter, “Where Have All The Trials Gone?” As a reminder, in that column I referenced statistics generated by the Ohio Supreme Court which revealed a significant decrease in the number of both jury and bench trials in recent years.
There has been a 27% drop in civil jury trials from five years ago. The percentage of cases terminating in a trial has gone from 3.3% ten years ago to 1.5%.

Although virtually every other indicator of legal activity is rising, trials are declining not only in relation to cases in the courts but to the size of the population and the size of the economy. See, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts (Galanter), Journal of Empirical Legal Studies, Volume 1, Number 3, November 2004 , pp. 459-570(112).

Given that there are about 30,000 lawyers in Ohio, 3,000 of whom are members of the OSBA Litigation Section, and there were only 881 civil jury trials in the state in 2008, not many of us are spending a lot of time in courtrooms.
The comments I have received addressed possible reasons for decreasing trials, and implications to our profession and system of justice.

Several of you suspect that there has been a corresponding increase in the number of dispositive motions granted, both motions to dismiss and summary judgment motions. Anecdotally, there are stories of summary judgment motions being granted when there are genuine lessons of material fact, which judgments are then affirmed in the courts of appeals. Blame is laid at the feet of trial judges who, it is argued, have been influenced by campaigns waged by the insurance industry, the Chamber of Commerce, political parties, and others.

There is some evidence that the tool of summary judgment has a substantial impact on the number of trials. See, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah (Burbank), Journal of Empirical Legal Studies, Volume 1, Number 3, November 2004 , pp. 591-626(36).

This bring about a risk of decreased confidence in the justice system, if litigants feel they were denied their right to trial and their “day in court”.
Eric B. Hershberger, of Chester, Willcox & Saxbe, notes that some scholars have attributed declining trials to a seeming cultural preference for compromise over standing on principles. This development has been characterized as “new and troubling.” The Case for Trials: Considering the Intangibles (Butler), Journal of Empirical Legal Studies, Volume 1, Number 3, November 2004 , pp. 627-636(10).

Eric also points out that the declining rate and number of civil trials may be a function of greater pretrial investigation of facts which require parties to infuse more and more money. See, “Getting What We Asked For, Getting What We Paid For, and Not Liking What We Got: The Vanishing Civil Trial,” (Yeazell), Journal of Empirical Legal Studies, Volume 1, Number 3, November 2004 , pp. 943-971(29). There is only so much "creative" or "alternative" billing can do.

From a purely economic viewpoint, claims are commerce, but at day's end “a bad settlement is better than a good lawsuit.” We’ve all heard that saying, and for good reason: trials are the least desirable “commercial transaction” for a business. In a free enterprise economy where commercial and civil claims get negotiated and settled all the time as part of the ebb and flow of business, trials can be perceived as “claims gone awry.” A trial is not as much a stand for substantive justice as it is the last set of moves in a stalemated negotiation of a claim.

Eric suggests that certain industry “stakeholders” are building better mousetraps, so to speak. For instance, many insurers take advantage of extensive in-house staff to perform many investigatory and discovery functions to evaluate a claim or case. Further, ADR is perceived to be a better forum for certain types of litigation – investor/broker, employment, commercial or complex litigation, for instance.

ADR is generally less costly, quicker and provides access to resources and legal experts which create a “better” or more certain process than a trial, and particularly a bench trial. ADR and the “Vanishing Trial”: The Growth and Impact of “Alternative Dispute Resolution” (Stipanowich), Journal of Empirical Legal Studies, Volume 1, Number 3, November 2004, pp. 843-912(70). And there happens to be some evidence pointing to the relationship between the advancement of ADR to resolve disputes instead of taking a turn on an increasingly overwhelming docket. Puzzles about Supply-Side Explanations for Vanishing Trials: A New Look at Fundamentals (Seidman Diamond; Bina), Journal of Empirical Legal Studies, Volume 1, Number 3, November 2004, pp. 637-658(22).

Eric contends that declining trials are a result of a combination of people generally growing increasingly more adverse to risk, preferring compromise over fighting, avoiding the mounting expense of the pretrial process, and taking advantage of ADR opportunities.

As we turn to the implications of declining trials in Ohio, one is that we may be seeing the creation of more efficient and effective tools to resolve a dispute than a trial. For us “trial lawyers”, we have fewer opportunities to hone our skills under fire. This means less experienced lawyers will be handling the trials which do occur.

This raises particular difficulties for young lawyers, notes Marc Amos, who practices in Dayton with Taft Stettinius & Hollister. Marc also serves on the OSBA Young Lawyers Section Council. Fewer trials mean fewer opportunities for young lawyers to get in the courtroom and talk to a jury, question witnesses, and introduce exhibits. So how do young lawyers get “on the job” training? Marc suggests an expansion of OSBA CLE into mock trials, perhaps with competitions among lawyers and firms around the state.

I welcome further comments and opinions. Please share them with me, and we can keep this important discussion going.

Editor's Note: The above orginally appeared in the newsletter for the Litigation Section of the OSBA. Mr. Chappelear was kind enough to allow me to post this entry and its companion piece on this blog.