Death Of The
American Trial Lawyer
By Robert Eglet
Thomas Jefferson stated, “I consider [trial by jury] as the only anchor ever yet imagined by man which a government can be held to the principles of its constitution.” Our country’s citizens have fought and died for our right to a trial by jury. The deprivation of the right to trial by jury was of such great concern to our founding fathers that it was specifically listed as one of the grievances against King George III in the Declaration of Independence as justification for going to war in 1775. The right to a jury trial in civil cases is guaranteed by the Seventh Amendment to the United States Constitution, and the constitutions of virtually every state in the union. The right to trial by jury in both criminal and civil cases is deeply ingrained in our sense of justice. But, while these constitutional rights have remained in place since 1791, how civil cases are resolved has and continues to dramatically change.
Chief Justice William Rehnquist wrote: “The founders of our nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign… juries represent the layman’s common sense and thus keep administration of law in accord with the wishes and feelings of the community.”
Over 225 years ago, James Madison observed that, “trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” If we still believe this to be true, our liberty is in jeopardy. The civil jury trial is disappearing and appears to be rapidly approaching extinction, and with it will bring the extinction of the American trial lawyer.
We have witnessed a near century-long decline in the ratio of civil cases resolved by trial, and a 30-year decline in the absolute number of civil jury trials in this country. Since the mid 1930s, the proportion of civil cases concluded by jury trial has declined from 20 percent to well below 1 percent in both our state and federal trial courts. While that 20 percent was a minority of cases, it was nevertheless a substantial minority, and a significant amount of a civil practice was trial practice. By 1940, the ratio of civil cases resolved by jury trial had fallen to 15.2 percent. By 1972, it was only 9.1 percent. Two decades later, the percentage of civil cases being resolved through jury trial was only 3.5. By 2002, the ratio of jury trials to civil case resolutions had decayed to a dismal 1.8 percent. In 2005, jury trials as a proportion of civil case dispositions waned below 1 percent where they continue to decline toward an effective rate of 0 percent.
Tort case trials have declined at an even more rapid and exponential rate over the past 50 years. In federal court in 1962, one out of every six tort cases filed was resolved by jury trial. By 2002, only one in every 46 tort cases filed went to trial. In 2010, the trial ratio fell dramatically to less than one in every 136 tort cases filed. Today, it is believed to be fewer than one out of every 200 tort cases filed in federal court ever reaches trial.
Over the past 50 years, civil actions filed in Nevada state and federal trial courts have significantly increased. Yet, the number of civil actions resolved by jury trial has diminished at an alarming rate and continues to decline, year after year, in both the proportion of jury trials to case filings and the absolute number of jury trials. In 1962, there were 5,802 civil trials in our federal courts. By 2002, the number of civil actions resolved by trial dropped by 22 percent to 4,569; despite an overall increase of 514 percent in the number of civil action filings during the same period of time. Between 1991 and 2010, our federal courts saw the absolute number of civil jury trials decline by an astonishing 52.3 percent.
The story is the same in our state trial courts, where the overwhelming majority of civil jury trials occur. During the same 19-year period (1991-2010), the absolute number of civil jury trials plummeted 52 percent, as well. In 1992, in our nation’s 75 most populous counties, there were 22,451 jury trials. By 2001, that number had plunged to 11,908, and in 2005 there were only 10,813 jury trials…fewer than half the number from 19 years earlier. By 2002 only 0.6 percent of all civil cases in our state courts were resolved by jury trial. Today, the downward spiral continues toward zero.
In 2012, the percentage of civil cases that went to trial in Texas was 0.4 percent. In one of the major counties in Texas, where there are 14 dedicated civil district court trial judges, there were only 48 civil jury trials in 2014—fewer than four jury trials per judge. In the entire state of Iowa during 2014 there were only 184 civil jury trials, and in 13 Iowa counties there were no jury trials whatsoever…civil or criminal. In 61 of Iowa’s 99 counties there were three or fewer jury trials during the entire year. In Oregon, by 2008 the percentage of civil cases resolved by jury trials had dropped to 0.4 percent. In Tennessee, the number of jury trials in state civil trial courts fell from 2,000 in 1990 to 1,000 in the year 2000, to 384 in 2008. In Florida’s county civil trial courts, from fiscal years 1986-1987 through 2009-2010, the jury trial rate was effectively zero. In 1986-87 there were 776,904 civil case dispositions and only 108 civil jury trials (0.0139 percent). In 2009-10 there were 2,696,314 civil case dispositions, but only 119 by jury trial (0.0044 percent). In Nevada during 2014 there were 49,458 total civil case dispositions, but only 176 civil jury trials, a dismal 0.35 percent jury trial rate. (What is particularly disturbing about that percentage is that it is above the national state average, which hovers around 0.25 percent.)
The dwindling number of civil jury trials in this country has been steep and dramatic. Every courtroom lawyer in America knows, empirically, that there has been an exponential decline over the past 50 years across all state and federal courts in both the percentage of civil cases resolved by jury trial and a significant decline in the absolute number of civil jury trials over the past 30 years. We have gone from a civil justice system where jury trials were routine to one where jury trials have become nearly extinct.
The list of causes responsible for the alarming decline of civil jury trials includes: the rise of alternative dispute resolution (ADR); escalating costs of litigation, particularly the extraordinary expansion of discovery that has added unnecessary costs to trying cases; the adoption of a judicial philosophy of discouraging trial; the enormous increase in granting summary judgments, particularly in our federal courts; the expansion of federal pre-emption; and tort reform, including the capping of damages and attorneys fees, as well as giving certain people or entities immunity, which has lead to a lack of trial skills or experience of the current generation of lawyers.
Historically, most civil cases resolve by settlement and will continue to do so; however, the privatization of dispute resolution through arbitration may be the largest contributor to the disappearance of the American jury trial.
This has disturbing consequences. In private arbitration, the pleadings, testimony, documents and findings are all hidden from public view. Both the public and the press are barred from the arbitration room. ADR is largely unregulated and in nearly all cases, private. Today, nearly every consumer and employment contract requires the consumer and employee to waive their Seventh Amendment constitutional right to jury trial and to resolve any dispute by private binding arbitration. Our Supreme Court has undermined Americans’ Seventh Amendment right by its erroneous decisions interpreting the Federal Arbitration Act to substitute juries with arbitrators whenever possible. There are important and inappreciable social benefits that result from public trials. Trials effectuate positive change. They engender manufacturers to make safer products. They encourage health care providers to provide safer care. They inspire motorists to drive with more caution. Trials force employers and governmental entities to create and implement affirmative policies. Trials bring the light of public scrutiny to what private arbitrations keep hidden in the shadows.
Litigation Costs and Discovery
Pre-trial discovery used to consist of receiving a few hundred pages of documents, serving at most 20 interrogatories and taking a couple of one-hour depositions. During my first 4 years of practice, my boss and mentor Mitch Cobeaga would come into my office on a Friday afternoon about once a month and ask if I had a “clean suit.” My response was always “yes,” although I doubt my response would have mattered. Mitch would then drop a file on my desk (this was back when we used paper) and say, “Good. You’re going to trial Monday.”
Back then, the file would nearly always consist of merely the plaintiff’s medical records, answers to 20 stock interrogatories, and a 40 to 50-page deposition of the plaintiff. Granted these were not large cases, but we did not take the depositions of the healthcare providers, the eyewitnesses or the traffic officer, and the plaintiff’s lawyer did not take the deposition of the IME physician. No one hired an accident re-constructionist, biomechanical engineer or a slew of other experts, and we simply tried the case and learned to think on our feet. Now, discovery consists of receiving multiple disks or an external hard drive with millions of pages of documents (granted, the types of cases I am trying now are much different); multiple experts’ reports; countless volumes of written discovery; and endless depositions of every single person who might have some piece of information that could possibly be relevant to the case.
Pre-trial discovery has unfortunately and unnecessarily become too expensive, resulting in lawyers trying far fewer cases. Colossal pre-trial discovery is now the lifeblood of “litigators,” the term adopted by discovery/motion lawyers who do not try cases. The unprecedented cost of discovery discourages clients and their lawyers from going to trial. Clients are also pressured into ADR by their “litigators,” who are too inexperienced or too scared to go to trial. What does it say about the state of the American trial lawyer that many partners in litigation firms have never actually tried a jury trial to verdict?
Judicial Philosophy Against Trying Cases
Many judges in both state and federal courts have embraced a philosophy of discouraging trials and view themselves solely as case managers. Many judges see jury trial as a burden or a “failure” of the parties to reach a resolution. Rules, policy statements and judicial expectations in many jurisdictions place emphasis on how quickly they dispose of cases, resulting in some judges pressuring parties to settle and adopting the view that a case going to trial is a failure of the system. They often profess, “a compromised settlement is always better than a great trial result.”
Is that really what our country’s founders believed?
The Rise Of Summary Judgment
The rise of the use of summary judgment to dispose of cases by our judiciary has added to the decline of jury trials. There is an argument that some trial judges utilize summary judgment to manage their docket and regularly take triable cases away from juries. In the federal courts, more cases today are disposed of by summary judgment than through jury trials. Only two decades ago jury trials occurred at twice the rate that summary judgment was granted.
For centuries, federal pre-emption was narrowly construed. Today, however, it is applied broadly, stripping state court juries of their traditional areas of jurisdiction and replacing them with federal standards that provide scant, if any, protection for people. Especially in the area of mass torts and product liability cases.
Today, cases of injured consumers are swept into multidistrict litigation (“MDL”), which is managed by the federal courts. The MDL structure, while not without benefits in some cases, usually results in extensive delays that cause most consumers to choose (or be essentially forced) to settle cases without a jury trial.
For decades, big business and the insurance industry have demonized our civil juries while most lawyers and the judiciary did little to defend our Seventh Amendment right. Many civil defense lawyers propagated the myths manufactured by the chamber of commerce and their allies of the “litigation explosion” and “run-away juries.” It is no coincidence that the steep decline in the absolute number of jury trials started during the same years these myths gained wide acceptance. As a result, Congress and legislatures throughout the states have restricted access of our citizenry to their constitutional right to jury trial through so called “tort reform,” by placing caps on damages and additional burdens on the ability of tort victims to seek redress for their injuries. A civil justice system without a jury serves business interests and the elite…at the expense of the people.
Civil jury trials have become so rare that most young lawyers have never had the experience of trying a civil case before a jury; and, they never will. It is undeniable that the average lawyer of today has less trial experience than the average lawyer of yesterday. What may be of greater concern is that within the lawyer population, the absolute number of experienced trial lawyers continues to dwindle.
Americans typically (and rightfully) get upset with the prospect of infringement upon their constitutional rights, such as their First Amendment freedom of speech or religion rights, or their Second Amendment right to bear arms. Yet we are witnessing our Seventh Amendment right to a civil jury vanish with imperceptible protest. For those of us who believe that a jury trial is a fundamental and important civil right and that it evidences the very best of our government, this phenomenon is frightening.
Trial strategy and cultivation of jury trial skills are quickly and quietly becoming relics of the past. Lack of genuine trial experience increases the probability that a lawyer will make errors in the early stages of a case, because it is difficult to understand the importance of each step of building a case unless you understand the whole picture. It is like trying to put together a jigsaw puzzle without the picture on the box lid. In the absence of trial experience that teaches lawyers to think on their feet, they will be unable to deal with the rare case that is tried before a jury. The failure of young trial lawyers to acquire trial experience essentially guarantees that there will be no next generation of great American trial lawyers.
Exacerbating this problem is the practice by most lawyers of making settlement decisions based on historical data from other settlements, creating a closed feedback loop or echo chamber that threatens to move our legal system further away from normative notions of justice amongst its citizens. With a significantly depleted civil jury bar, the valuation of cases is often left to private mediators or arbitrators, most of whom have little to no recent trial experience, giving them no understanding of case values. This is accelerating a downward spiral in which “trial” lawyers with little to no trial experience settle cases with no real experience from which to determine the value a jury would place on their case. This produces a system in which cases do not settle for their true value. Instead, they settle for the “going rate” established by past settlements of similar cases in which other inexperienced “trial” lawyers and mediators bargain for settlements that have no relation to how a jury would value the case because they have not seen enough jury trials to tell them how a jury would value the case. This problem will persist if there are not enough jury trials to tell us how juries value certain cases in the community.
“Because securities class actions rarely if ever go to trial, settlement judges, like lawyers, have little relevant experience to draw on other than their knowledge of settlements in similar cases . . . their role becomes not to increase the accuracy of settlements, but to provide an impetus to reach some settlement. In the absence of information about how similar cases fared at trial, settlement judges could be an important force in maintaining a “going rate” approach to settlement.” Janet Cooper, Do The Merits Matter? A study of settlement of securities class action, 43 Stan. L. Rev. 497,567 (1991)
There is a startling percentage of cases settling in error. National statistics establish the percentage of error for plaintiffs is 61 percent, versus a defendant’s error rate of only 24 percent, with only 15 percent of civil cases settling for the proper amount. The mean cost of error for plaintiffs is $43,100 per case, representing billions of plaintiffs’ lost dollars…compensation to which they are entitled.
Inexperience leads to fear. Fear of going to trial adds pressure to a downward spiral of fewer trials. Add to that pressure the escalating costs of discovery and trial court judges placing far too much pressure, far too often, on parties and lawyers to settle, and the result is the extraordinary crisis of the death of the American Trial Lawyer. This begs the question, if we are raising a new generation of “trial” lawyers for whom trial is merely a theoretical concept, do lawyers who have little or no trial experience have an ethical obligation to inform the client who is about to hire them as a “trial” lawyer of their lack of trial experience?
The vanishing number of jury trials presents a paradox. Lawyers regularly settle cases because they have neither the experience, nor the skills to try them. This results in even fewer and fewer cases being tried. With fewer trials, fewer lawyers will gain any meaningful trial experience. What happens when all the lawyers with any meaningful trial experience die off?
This alarming trend represents an erosion of the founding principles of our country. As Thomas Jefferson recognized, a jury of our peers is the most effective check against state power and has been the cornerstone in our judicial system since our nation’s birth. It legitimizes the law by providing opportunities for citizens to validate civil statutes and common law, and to apply them to the facts of specific trials, creating a common sense of justice. Additionally, the ever-shrinking number of jury trials limits access to justice for many.
The disappearance of civil jury trials affects not just lawyers, but affects our clients as well as our citizenry. Fewer trials mean fewer citizens participating in jury service, and jury service is the most meaningful way for people to directly participate in our country’s democratic governmental decision making. For most Americans, jury service is the only opportunity they will have to play an important role in governmental decision making, other than casting their vote in an election. Many citizens feel disenfranchised to varying degrees, feeling they lack adequate representation, and as a result they are distrustful of government and its representatives. The value of having the public involved in our justice system is immeasurable, and jury service educates the public about the justice system, the role of the rule of law, and the juror’s role in the system.
U.S. District Judge William G. Young in his “Open Letter to U.S. District Judges” said it best:
“Our willingness, as a society, to drift from the use of juries reflects a failure in the understanding of the jury’s essential function in our American democracy. The jury system is direct democracy at work . . . . When people recognize that they have been cut off from their opportunity to govern directly through citizen juries, the sense of government as community—as a shared commonwealth—is severely diminished . . . the moral force of judicial decisions—and the inherent strength of the third branch of government itself—depends in no small measure on the shared perception that democratically selected juries have the final say over actual fact-finding.” The Federal Lawyer, July 2013, 30, pg. 32
Several years ago, the journal of the American Bar Association in its section on litigation published the following obituary:
“The American Trial Lawyer, who enhanced the lives of so many Americans and made the United States . . . a just nation, passed away recently. Although a precise age is uncertain, the American Trial Lawyer was believed to have been at least 371 years old at the time of death. The cause of death is uncertain . . . but was not sudden. In fact, the American Trial Lawyer had been placed on the endangered species list a decade or so before death. The autopsy determined that the American Trial Lawyer most likely died from a long term, progressive illness that began more than 40 years ago . . . and was exacerbated by a genetic mutation of the civil justice system that came to be known as arbitration and mediation . . . and the spread of inaccurate information about frivolous lawsuits and verdicts like the McDonald’s ‘Hot Coffee’ case.”
The disappearance of the civil jury trial poses a clear and present danger to our civil justice system and to our democratic society. We are now falling deeper and deeper into a chasm of privatization of our civil justice system through private arbitration and other forms of ADR.
I believe in the jury trial. The jury trial, with all its faults, is our purest form of self-government. I believe jurors work diligently to reach the right decision, and leave feeling good about their service and about the justice system. The loss of that citizen participation in government cannot be measured in dollars. It means fewer and fewer of our citizens will have the opportunity to participate in our American experience of self government that our founders worked and fought so hard to establish. I believe that through the American jury, decisions of justice are vested where they belong: with the governed.
If this year’s presidential election has taught us anything, it is that a large segment of the American population trusts neither the current executive in chief nor the legislative branches of our government. If we do not collectively start finding ways to preserve the civil jury trial—not just in right, but in reality—how long will it be before the American people no longer trust the country’s judicial branch and start viewing judges with the same attitude they view the elected members of the other branches of government? This implicates the “bulwark against tyranny and corruption” about which Justice Rehnquist spoke. American citizens must remain a part of the judicial process so that they do not lose faith in their community or their country.
Are we witnessing the end? Will we continue to passively watch the ratio and absolute number of jury trials decline to zero? If we do, will there be a need for trial courts and trial judges? Will the loss of jury trials result in the loss of a continuous flow of relevant appellate opinions based on jury trials? Will we allow ours to be the last generation of American Trial Lawyers?
Robert Eglet has tried more than 120 civil jury trials to verdict, including some of the largest personal injury verdicts in the country in 2007, 2010, 2011 and 2013. Eglet was named National Trial Lawyer of the Year in 2013 by the National Trial Lawyers Association and National Lawyer of the Year in 2010 by Lawyers USA. He has been honored twice by the Nevada Justice Association as Trial Lawyer of the Year (2005, 2012) and in 2013, Eglet received the National Thurgood Marshall Fighting for Justice Award. The National Law Journal has named Eglet’s firm as one the “12 Best Plaintiff’s Law Firms in the Country” and one of the “50 Best Trial Firms in America.” Eglet lectures regularly on trial practice and innovation in the courtroom.