Celebrating 10 years! 2007-2017

The Disappearing Civil Jury Trial In the United States

http://digitalcommons.law.yale.edu/ cgi/viewcontent.cgi?artic ambulancechaser201309/10/17
civil jury trial=mob rule mrlollipop09/10/17
The author says trials no longer happen because the rules of guyingorillasuit09/10/17
I didn't have time to read through the whole article and I e caj11109/11/17
Honestly, I don't see why any lawyer interested in the "trut qdllc09/11/17
Now more than ever we need jury trials. They're in the bill physicssezno09/11/17
That's a good part of it. another factor are the contract c bittersweet09/11/17
The only time I want a jury is if I think I can inflame thei jorgedeclaro09/11/17
I think now more than ever we do NOT need jury trials. I li bigbossman09/11/17
The fact that you think you can "out argue" and "out frame" physicssezno09/11/17
Why is my partner's big smile and honest face that juries li jorgedeclaro09/12/17
Judges absolutely can be arbitrary. I agree re slick back ha physicssezno09/12/17
It would be malpractice to leave my wife on a criminal jury jorgedeclaro09/12/17
I've done both bench and jury trials in a criminal court. I thirdtierlaw09/12/17
In tort cases a big reason is that both plaintiff's lawyers flharfh09/12/17
Many states used to have negligence law whereby if a plainti bostonlawyer.209/12/17
I believe costs are a major issue. Risk of loss was always t physicssezno09/12/17
BTw, i buy the risk of loss argument in criminal cases becau physicssezno09/12/17
Daubert increased the cost of trial in federal court and the midlaw09/12/17
ambulancechaser2013 (Sep 10, 2017 - 8:26 pm)

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5844&context=fss_papers

Not that this was not obvious to every civil litigator.

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mrlollipop (Sep 10, 2017 - 9:23 pm)

civil jury trial=mob rule

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guyingorillasuit (Sep 10, 2017 - 10:31 pm)

The author says trials no longer happen because the rules of civil procedure have encouraged getting all the information out in discovery, etc. I believe that the reason civil trials are vanishing is that they are too expensive. Civil cases usually involve an imbalance of power - traditionally, a poor plaintiff and a wealthy defendant. The defense can afford all kinds of experts and defense attorneys seem to take pride in using the discovery phase to bury the other side with paperwork and procedural motions. It's too expensive for plaintiff's lawyers.

So, the rich guys won. It's not surprising - after all, they usually do. However, the system that was supposed to provide some measure of equality under the law has been rendered at least partially impotent.

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caj111 (Sep 11, 2017 - 8:48 am)

I didn't have time to read through the whole article and I expect a lot of it just states the obvious anyway (of course in the most scholarly, drawn out way by saying things in five paragraphs that could be said in a few sentences), but does the article touch on the subject of arbitration at all? Seems to me that would account a large chunk of the would-be jury trials in this country. Arbitration, while it seemed so great at the time it started, has become an imbalance of power too with rich guys winning, largely by fixing the outcome, with damage awards being capped, the rich guys being the ones who pay the arbitrators (obviously created some very biased arbitrators), etc.

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qdllc (Sep 11, 2017 - 1:46 pm)

Honestly, I don't see why any lawyer interested in the "truth" would bother with a jury trial. The voir dire process pretty much eliminates anyone truly knowledgeable on the subject matter, and it quickly devolves into a "who can afford the best liars" to win the case. It's all about getting a sympathetic panel of jurists, and rarely does that produce a just result.

At least in a bench trial, if there's error or the judgment isn't supported by the evidence, appeal is more reasonable. The judge is supposed to follow the rule of law and generally must justify ruling contrary to the rule of law. A jury's machinations are rarely questioned unless the disconnect is quite severe.

My 2 cents.

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physicssezno (Sep 11, 2017 - 2:03 pm)

Now more than ever we need jury trials. They're in the bill of rights for good reason. Judges cannot replace juries and should not.

I blame the decline in trials on the high cost of experts, the bs tort deform movement, expansion of pretrial procedural law, and the cutting of judicial resources.

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bittersweet (Sep 11, 2017 - 3:00 pm)

That's a good part of it. another factor are the contract clauses requiring binding arbitration. These tend to get pretty one sided and knock out a lot of what could have been legitimate cases.

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jorgedeclaro (Sep 11, 2017 - 7:05 pm)

The only time I want a jury is if I think I can inflame their passions to get a good damages number which is usually a PI case. If I'm right legally, I generally want the judge even if the judge sucks. I can out-argue and out-frame any opponent in any trial brief.

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bigbossman (Sep 11, 2017 - 10:14 pm)

I think now more than ever we do NOT need jury trials. I like the Apple v. Samsung example. Can you imagine putting months of your own life on hold to decide which rich ass corporation will get more money from the other? Who gives a $hit! I am speaking for the poor jurors of course, if you are an attorney involved and are basically printing money off the case, good on you.

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physicssezno (Sep 11, 2017 - 10:29 pm)

The fact that you think you can "out argue" and "out frame" the opponent in "any case" shows why we need jury trials and not just law trained judges. Lawyers can rationalize their way into anything and always think they're smarter than everyone else.

Agreed re rich vs richer. But most trials aren't that, esp not state court which is far more about local issues like safety (torts) and crime (criminal law).

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jorgedeclaro (Sep 12, 2017 - 12:28 am)

Why is my partner's big smile and honest face that juries like a better system than my ability to argue why I'm legally right to a judge? Hell, my wife said she would have found against a criminal defendant on the jury she almost sat on because the defense attorney had greasy hair "so his client must have been icky too." My skills might be manipulative, but at least they aren't arbitrary.

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physicssezno (Sep 12, 2017 - 9:28 am)

Judges absolutely can be arbitrary. I agree re slick back hair issue. Don't look slick. Who have you ever seen and trusted with slick back hair?

Also, your wife wasn't even on the jury ("almost on" doesn't count). She said it based on two seconds she spent before hearing one word of evidence or instruction. You think those would affect her decision as the case went on?

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jorgedeclaro (Sep 12, 2017 - 10:46 am)

It would be malpractice to leave my wife on a criminal jury as a criminal defense lawyer if you knew her. She thinks all people who are arrested must be guilty and that police officers never lie. So yes and no, the greasy haired attorney would have only further hurt his client, but he would have been screwed from the start.

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thirdtierlaw (Sep 12, 2017 - 10:53 am)

I've done both bench and jury trials in a criminal court. I wouldn't trade a jury unless there is a really good reason for it. Even with both the good and the bad that comes with juries.

I've never done a civil trial. Every time my firm gets anywhere close, the case resolves. So maybe the lower standard of evidence makes a big difference. I have seen State Court Judges be just as arbitrary as the worst jurors I've voir dired.

You still get to argue the law to a judge in a jury trial. So why not get the best of both worlds with a jury?

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flharfh (Sep 12, 2017 - 4:04 pm)

In tort cases a big reason is that both plaintiff's lawyers and insurance companies hate the unpredictability that comes with juries.

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bostonlawyer.2 (Sep 12, 2017 - 7:35 pm)

Many states used to have negligence law whereby if a plaintiff was found 1% negligent, they could not recover.

So back then, it lost always made sense to go to trial as you could easily pin 1% on the P.

Ask an old timers - they used to do a jury trial every 10 days!

Then laws were changes to have pure comparative or contributory negligence, so there was less incentive to go to trial.

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physicssezno (Sep 12, 2017 - 9:18 pm)

I believe costs are a major issue. Risk of loss was always there, especially in old 1% contribution days. The diminishing jury trial is new so only new reasons could have led to the decline.

1. Excessive expert costs
2. Expansion of Pretrial practice
3. Delays (de facto tort deform)
4. Tort deform

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physicssezno (Sep 12, 2017 - 9:20 pm)

BTw, i buy the risk of loss argument in criminal cases because of the relatively new the insane plea bargaining (extortion) allowed so cost of trial is legitimately huge.

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midlaw (Sep 12, 2017 - 10:44 pm)

Daubert increased the cost of trial in federal court and the risk of a daubert motion created an incentive to settle at the daubert/summary judgment stage.

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