In Response To The Resurrection Of The American Trial Lawyer:
The Disappearance Of The Civil Jury Trial
By Robert T. Eglet, Esq.
The article I wrote for Vegas Legal Magazine’s spring issue—“Death of the American Trial Lawyer”—resulted in a surprising yet encouraging response from readers, both locally and across the country. The publishers informed me that the article has been read online by more than 200,000 viewers, and I have received hundreds of emails from readers requesting more information about the danger that the disappearance of the civil jury trial poses to our justice system. More importantly, readers are asking if anything can be done to reverse this alarming trend.
Death of the American Trial Lawyer
In “Death of the American Trial Lawyer,” I briefly discussed the importance of the civil jury trial to the American justice system and documented the steep decline in the ratio and absolute number of civil cases resolved by jury trial over the past 80 years. In the 1930s, 20 percent of all civil cases in both Nevada and in the federal courts were resolved by jury trial. Today, the average number of civil cases concluded by a jury’s verdict is a quarter of a percent, and in some states it is effectively zero percent. I outlined the major causes of this decline as being Alternative Dispute Resolution (ADR), or what many legal scholars refer to as the privatization of the civil justice system; the exponential rise of litigation costs including out of control, and often unnecessary, pretrial discovery prompted by billable hour requirements; the adherence to a judicial philosophy that case settlement is better than trial, no matter the situation; the rise of case dismissals via summary judgment; federal pre-emption that guts an otherwise viable action; and, the biggest enemy of the American consumer: tort reform.
I suggested that one foreboding consequence of the threat of civil jury trial extinction is that experienced trial lawyers are quickly becoming relics of the past. The drastic reduction of civil jury trials, both in ratio and absolute number, has lead to a lack of understanding of the true settlement value of most cases. This, in turn, has led to a majority of cases settling for less than their true value, and resulting in injured victims losing hundreds of millions of dollars annually in lost compensation to which they are legally entitled. Further, the rapid decline of jury trials negatively effects our democratic form of government. The drastic reduction of civil jury trials ensures that a much smaller segment of the population has the opportunity to participate in jury service. Jury service is the only opportunity most citizens have to directly effect government decisions.
In this article, I outline generally the history and importance of the civil jury trial to Americans, and identify some solutions to revive it.
History and Importance of the American Civil Jury Trial
The civil jury trial has deep roots in our country. The American colonists, governed by English law, believed that trial by jury was a fundamental right, and one necessary to ensure a government by the people, for the people. The right to a jury trial in the administration of justice was considered to be indispensable by our nation’s founders and non-negotiable by the leaders of the American revolution. They believed that the right to trial by jury could be traced back in an “unbroken line” to chapter 39 of the Magna Carta, issued in 1215, which stated: “No free man shall be taken, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.”
England’s repeated attempts to restrict the right to a jury trial in the colonies was a major grievance leading to the Revolutionary War. In nearly every major document and speech delivered before the revolution, the colonists portrayed trial by jury as, if not their greatest right, one that was indispensable. Included in the grievances against King George III listed in the Declaration of Independence was: “[D]epriving us, in many cases, the benefits of trial by jury.” The only other right eventually included in the Bill of Rights mentioned specifically in the Declaration of Independence was the prohibition against quartering troops.
The early state constitutional drafters considered the civil jury trial an important instrument for the protection of individual liberties. The Massachusetts Body of Liberties, enacted in 1641, was the first colonial charter to provide for civil and criminal jury trials by name. By contrast, this same chapter made no mention of free speech rights or freedom of the press, and secured freedom of religion for Christians only. The Bill of Rights in the 1776 Virginia constitution provides that: “[i]n controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.” The constitution of Pennsylvania followed Virginia’s in affirming the right of trial by jury in civil cases: “[i]n controversies respecting property and in suits between man and man, the parties have a right to trial by jury, which ought to be sacred.” The 1776 constitution of North Carolina, stated: “[i]n all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of people, and ought to remain sacred and inviolable.” Similar language is found in the constitutions of Vermont in 1777; Massachusetts in 1780; and New Hampshire in 1784.
The right to jury trial in criminal cases was secured by the framers when they incorporated it directly into the main body of the U.S. Constitution. However, they did not provide for the right to civil jury trial, or any of the other individual liberties listed in the Bill of Rights. In fact, the U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. In 1791, during its first session, congress drafted the Bill of Rights, securing the right to civil jury trial in the 7th amendment.
The American system has always considered the civil jury a critical part of our democratic government because more than any other single institution, juries give citizens the opportunity to participate in government, which both educates and enhances their regard for the American system of justice. Jury service is the only place where average citizens can participate directly in government in a way that has a direct impact on events.
Civil jury verdicts are public, and they affect all interests of the community and represent the American idea of justice. Civil juries are often referred to as the “conscience of the community” and they stand as indispensable guardians over corporate negligence and corruption. Civil jury verdicts have led to significant improvements in the safety of consumer products, industrial machines and health care products. They have deterred arbitrary use of power by officials and employers, and the civil jury trial is often the only way for victims of civil rights violations to obtain justice. It is well recognized that product manufacturers, hospitals, pharmaceutical companies, and other defendants in personal injury actions have redesigned products; improved medical care; and have taken other steps to improve or save lives following jury trials and verdicts.
In 2008, my firm and I took on a case with the intent of making far-reaching changes in the pharmaceutical and medical fields. Over 100 Las Vegas residents were infected with hepatitis C as a result of faulty injection practices fueled by the drug companies’ increasing profits at any costs attitude. The drug companies knew the risk of hepatitis C transfer and notified the Federal Drug Administration (FDA) of such risks well before the Las Vegas outbreak; but to save money, packaged their drug in an unsafe and cheaper form. In 2010, the first of several Las Vegas civil jury trials ensued garnering a $505 million verdict for a headmaster and his wife of a prestigious local high school who contracted hepatitis C during an endoscopic procedure. The next verdict we obtained was for $183 million, and the verdict after that was obtained by another firm for just over $100 million. Finally, during the last trial where we were convinced the verdict would be over $1 billion, (and we believe the defense attorneys were equally convinced), the cases were finally settled.
Those verdicts allowed the victims that my firm represented to receive the compensation they deserved. They also allowed other firms in our jurisdiction to obtain settlements higher than they would have, had these trials not occurred. It is well known in our community that the cases that settled early, before these verdicts, settled for significantly less. More importantly, injection practices were changed nationwide, in an attempt to prevent this type of outbreak from occurring, as it had on multiple prior occasions in other parts of the United States and around the world. I am confident these practices would not have changed without these jury trials and verdicts.
As you can see, the civil jury trial is more than a process for bringing a grievance to resolution. It is a pillar of our democracy necessary for the protection of individuals against tyranny, repression, and mayhem, and to deter such injustices in the future. Jurors do their duty with no further ambition that their decisions could result in some future advantage for themselves. Jurors come to court, deliberate, and go back to their homes and work better off for their service. In other words, the civil jury trial system cannot be bought. It is our purest form of justice.
Jurors differ from judges because of the values they bring to cases and the freedom they have to apply those values. And as former chief justice William Rehnquist aptly noted, the right to civil jury trial was guaranteed by our Bill of Rights “precisely because the framers believed that they might receive a different result at the hands of a jury of their peers than at the mercy of the sovereign’s judges.”
In his book We The Judges, the late U.S. Supreme Court Justice William Douglas wrote:
A jury reflects the attitudes and mores of the community from which it is drawn. It lives only for the day and does justice according to its lights. The group of 12 who are drawn to hear a case, makes the decision and melts away. It is not present the next day to be criticized. t is the one governmental agency that has no ambition…it is as human as the people who make it up. It is sometimes the victim of passions. But it also takes the sharp edges off a law and uses conscience to ameliorate a hardship. Since it is of and from the community, it gives the law an acceptance which verdicts of judges could not do.
Juries have more latitude than judges to make difficult and unpopular decisions. They deliberate in secret, they don’t have to explain their decisions, and they are typically protected by rules which limit post-verdict interviews. Studies show that jurors uniformly rate both their experience and the jury system highly while citing their service as being a major and moving experience in their lives. While prospective jurors often grumble over their duty to serve, I am always amazed at how proud and grateful they are for having served.
When disputes are resolved without trial there is no public record, which allows wrongdoers to suppress information about dangerous products, defective drugs, negligent professionals, and other wrongdoing. The United States Supreme Court and constitutional scholars have repeatedly pointed out the right to civil jury trial was embraced by our nation’s founders not because juries were the most economical way of resolving disputes, but, far more fundamentally, because “in important instances…[A] jury would reach a result that the judge either could not or would not reach.” And as one commentator observed, “bringing the law to the people may not make it more just in all cases, but it will make it the law of the people, which is what it should be in a constitutional democracy.”
Thomas Jefferson recognized that a jury of our peers is the most effective check against state power and has been a 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. Further, the United States Supreme Court has recognized in numerous decisions that the primary function of the jury system is to provide a check on official or arbitrary power.
A Call To Action
The American public has remained largely silent over the disappearance of the civil jury trial. Do they not know they have this right, the importance of this right, or that it is presently on the endangered rights list? Tragically, there is scant public education about the history and importance of the civil jury trial to our democratic principals. Notwithstanding the historic and current importance of the civil jury trial, it is one of the least understood features of our judicial system.
Legal education programs teach little about the civil jury institution. Even organizations committed to protecting the Bill of Rights exalt limited public support for our right to civil jury trials. Outside of the members of the bar, there are no programs or efforts to educate the public about the history and importance of the vanishing civil jury that I could find. The American public needs to be informed about this fundamental right and how it significantly enhances their ability to hold accountable institutions and individuals who misuse their power over other people.
In 2014, of the 29 states that reported, the ratio of civil jury trials to civil disposition ranged from a low of 0.06 percent to a high of only 0.55 percent. Today, the average ratio is 0.25 percent and the downward spiral is continuing toward zero. The decline of the civil jury trial should be a call to action for all of us who are concerned about the health of our democracy and the preservation of the 7th amendment.
- Full-Court Funding
Critical to resurrecting the American trial lawyer and the civil jury trial is ensuring that our courts are fully funded at both the federal and state levels. Court funding issues have clearly impacted and contributed to the decline of civil jury trials. We need more courtrooms and judges to preside over cases. While the number of jury trials has declined, the courts’ caseloads have significantly increased placing pressure on trial judges to move cases, resulting in those same judges pressuring litigants and their lawyers to resolve their disputes outside the courtroom and without a jury.
- Removing All Penalties for Exercising the Right to Jury Trial
If a party loses a jury trial, courts and legislation often impose penalties for such loss, including paying the opposing parties’ attorneys fees and costs. Any penalty imposed after a jury trial that would not be imposed as a result of a settlement of the case is a not-so-subtle infringement of our 7th amendment liberty. This applies to any loser-pay system, including the current offer of judgment rules provided for in the federal rules of civil procedure and in most state civil procedure rules or statutes.
Further, there should be no additional fee for a litigant to request a trial by jury. In many jurisdictions, including Nevada, a fee is required to request a jury trial. In my view, there should never be any financial cost to exercise a constitutional liberty.
- Training and Mentoring Programs
Experienced trial lawyers have a responsibility to raise the next generation of trial lawyers. As a result of the mentoring I received as a young lawyer from Mitch Cobeaga, Franny Forsman and Rex Jemison, I have been able to achieve the results I have as a trial lawyer. I believe my partner, Dennis Prince, would agree that his successes were launched, in part, because of our mentoring relationship over the years.
My first job as a lawyer was with a large defense firm. This was a wise route for any new lawyer that wanted to try cases, because at that time, insurance companies and institutional clients appreciated that to have an ongoing pool of experienced trial lawyers from which to chose to defend their interests, they needed to pay for the legal training of the young lawyers. They understood that for young lawyers to get the appropriate training, they needed to permit their defense firms to have both experienced lawyers and a young lawyers attend trials and pay for their time. This provided defense firms with the ability to train and mentor their associates into experienced trial lawyers.
Somewhere along the way, insurance companies and institutional clients lost that foresight. Now, they refuse to pay for young, inexperienced lawyers to attend trial with experienced trial lawyers, eliminating their law firms’ ability to train the next generation of defense trial lawyers. Many large firms are not hiring lawyers right out of law school any longer, and instead, are making lateral hires of more experienced lawyers, compounding the problem of young lawyers not gaining any meaningful trial experience.
A number of states, including Nevada, have implemented mandatory mentoring programs because more and more new lawyers are not finding jobs with law firms that are able to provide them mentoring. Many new lawyers are being forced to go into private practice on their own (or with other recent graduates) with no experience. This, too, is compounding the problem of young lawyers obtaining trial experience. While these mentoring programs are a good start, they are not providing adequate training for new trial lawyers.
The answer may lie in the development of mentoring programs where the lawyer/students are assigned actual cases to litigate with more experienced trial lawyers. Florida has a program of this nature called Lawyers Advising Lawyers (LAL)— formerly SCOPE (Seek Counsel of Professional Experience). LAL provides assistance when a young attorney confronts a problem that is unusual, or when they are in an area of law unfamiliar to them. LAL offers quick access by telephone to an attorney who has experience with and knowledge of the particular problem or area without charge.
Expounding upon this mentoring idea, I would suggest trial lawyers allow access to their trials to young, aspiring trial attorneys. A young lawyer might agree to assist in a trial to obtain the otherwise unobtainable trial experience at no out-of-pocket cost to the trial attorney. These cases could be managed at a low cost, if the experienced trial lawyers were willing to spend time teaching and mentoring inexperienced lawyers in exchange for these lawyers providing free legal work in their preparation and trial of cases. I understand the short-term financial burden this places on the young, aspiring lawyer who is working without pay; however, the experience obtained would set them up for their professional lifetime.
- Limiting Discovery
Discovery costs have become a substantial roadblock to civil cases being resolved by a jury. Nearly all information is now stored on computers, which has made discovery (or rather “e-discovery”), in many cases, prohibitively expensive. This is largely caused by the tactic of institutional clients engaging in “digital document dumps.” This tactic is routinely used when injured victims or their lawyers don’t have the resources—or the case does not warrant the resources—to mine these “dumps” for the kernels of information relevant to the case. Trial judges and discovery commissioners must have the discretion, and be willing, to limit this type of discovery and to prevent parties from engaging in abusive discovery tactics. Our federal and states’ supreme courts should consider amending their discovery rules to consider both the resources of the parties and the issues at stake, as well how the digital age has changed discovery, in determining the methods and scope of discovery.
- Limiting Experts
Over the last two decades, experts have been routinely and unnecessarily used in lower value cases. This is now a common tactic used by insurance companies and institutional parties when they face lawsuits filed by ordinary people—in order to drive them to settle their cases for much less than their true value—because the plaintiff or his or her lawyer cannot afford to hire superfluous rebuttal experts. Trial courts and discovery commissioners should have the discretion and authority to limit or not permit expert witnesses in these smaller cases.
- Expanding the Short-Trial Program
The short-trial program has proved to be quite effective in disposing of smaller cases in an efficient and more cost-effective manner. Short trials limit the trial time typically to one day and allocate specific time parameters to each party to present their case. This forces the parties to be more efficient by thinking carefully about how to allocate their limited time most effectively. Consideration should be given to expanding this program to include short trials with three- and five-day limitations. That would capture more cases that parties are not willing or able to try in one day, but would be able or willing to try with three-day or five-day time limitations.
I would argue that the number of jurors in the three- and five-day short trials should be increased to at least six, if not eight. Every study done on this issue shows that the larger the jury (up to 12), the better the decisions. Of course, limiting discovery and the use of experts must be part of this program in order to reverse the decline of civil jury trials. Understand, however, there are cases that are just not appropriate for the short-trial program. The higher the case value, the less likely you should enter into a short-trial as a jury may equate less time addressing the case with a lower verdict.
- Utilizing Justice Court
During the 2015 session, Nevada’s state legislature increased the jurisdictional limit of justice court to $15,000. Nevada’s’ mandatory arbitration program does not apply to cases filed in justice court. Therefore, a case with a value of $15,000 or less can be tried in justice court without going through arbitration and then filing a trial de novo, which is required by the rules governing district court. Further, the award of costs and attorney fees for the prevailing party from a civil jury trial are mandatory in justice court. While, as I delineated above, I do not favor loser-pay sanctions, they do apply in justice court cases giving plaintiffs an incentive to file in justice court.
- Collaboration and Specialization
Although this sounds like self-promotion, I truly believe there is no better way to practice than to collaborate with those you believe to be the best specialized trial lawyers in your jurisdiction. Not only will this give you the backing you need when negotiating your case, but it also gives you the resources and experience of those with whom you associated.
Eglet Prince is built on the concepts of specialization and collaboration. We limit our practice to personal injury, product defect, wrongful death, and insurance bad faith so that we can be the most experienced in those areas. We collaborate with other law firms in the handling of significant injury cases. In some instances, our collaboration is a result of a Goliath-type defense mounted by the other side. More often it results from lawyers seeking us out that want an extra advantage. We are a trial firm that handles complex cases that most other personal injury firms do not have the resources, time or experience to prepare for or try. Collaborating allows the full value of the case to be obtained for the clients. Over 90 percent of Eglet Prince cases are referred to us from solo lawyers and law firms, both locally and from around the world, who ultimately receive a greater net fee by bringing us into the case. We also have collaboration agreements with law firms who we refer smaller less complex cases, and mentor and assist them when necessary in their trials or trial preparation.
There exists an opportunity for several young energetic lawyers or law firms to create collaborative agreements with law firms who can not or will not employ the resources necessary to try these small and mid level cases before juries. In my opinion, it is the only way insurance companies will begin settling these smaller and mid level cases for their actual value. If we work as a team in our legal community, the value of our clients’ cases will be reflected in the offers the insurance companies eventually make.
- Eradicating the Disease of Tort Reform
How many times will we hear the insurance industry “cry wolf” until the truth is revealed to the American public? The cries are always the same:
“Americans are lawsuit happy.”
“Frivolous lawsuits are clogging our courts.”
“Juries can’t be trusted because they routinely return outrageous verdicts that far outweigh the actual damages.”
“Medical malpractice lawsuits drive up healthcare costs for everyone.”
“Malpractice lawsuits are forcing doctors out of practice or to leave our state for states with damages caps.”
“Malpractice lawsuits drive up a doctors malpractice insurance rates, and caps will lower their rates.”’
All of these myths are propaganda invented by big business and the insurance industry, both of which want to scare Americans into relinquishing their 7th amendment liberty.
The infamous McDonald’s hot coffee case is the first example that proponents of tort reform love to cite.
“The lady goes through a fast food restaurant, puts coffee in her lap, burns her legs, and sues and gets a big settlement. That in of itself is enough to tell you why we need to have tort reform,” quoting former U.S. Congressman, Republican presidential candidate and present Governor of Ohio, John Kasich, while he was a member of congress.
The actual facts bear reciting:
- Stella Liebeck suffered third-degree burns to her inner thighs, genitalia and groin and was hospitalized for eight days requiring numerous skin grafts.
- LIebeck was a passenger in the vehicle being driven by her grandson.
- Liebeck’s grandson pulled over and stopped his vehicle so Liebeck could add cream and sugar to her coffee.
- The Ford Probe of LIebeck’s grandson had no cup holders, so LIebeck placed the cup between her legs.
- While trying to get the lid off, the coffee spilled on her sweatpants, immediately soaking through to her skin.
- LIebeck went into shock and her grandson rushed her to the emergency room.
- Prior to this, McDonald’s received more than 700 complaints of serious burns caused by their coffee being served too hot.
- McDonald’s policy was to serve coffee at a temperature between 195 and 200 degrees, despite knowing that temperature would cause third-degree burns in seven seconds or less.
- Liebeck tried to settle the matter with McDonald’s before hiring a lawyer for merely her medical expenses of less than $20,000, an offer vehemently rejected.
- An independent mediator recommended McDonald’s settle the case for $225,000, which McDonald’s rejected.
- Liebeck required 2 more years of additional medical treatment which greatly increased her medical expenses.
- The jury awarded Stella $200,000 for her compensatory damages, but found her 20 percent comparatively negligent. Thus, reducing the award to $160,000.
- The jury assessed punitive damages against McDonald’s of $2.7 million, which was equal to roughly two days of McDonald’s coffee sales profits. However, the trial judge reduced this to $480,000, but the judge found that assessing punitive damages against McDonald’s was appropriate to punish and deter the company for its wanton conduct and to send a clear message to McDonald’s that corrective measures were needed.
- McDonald’s appealed and the case settled for an undisclosed amount widely reported to be between $400,000 and $600,000.
When the true facts of the case are reported, most people recognize that this case was neither frivolous, nor was the verdict excessive.
The playbook for tort reform was quite simple. Major domestic and foreign corporations donate vast sums of money to the U.S. Chamber of Commerce and other lobbying groups, and Karl Rove and others direct that money into to the campaign coffers of politicians wiling to back tort reform. However, in 1995 President Bill Clinton vetoed a tort reform bill that favored big business, but would have devastated the American consumer and eroded our 7th amendment rights. Rove and his cronies responded by taking tort reform to state legislatures. The chamber and big business began funding state political races and running ads under the names of associations disguised to look like groups of “concerned” citizens. The ads hammered into the American psyche the lie that frivolous lawsuits were ruining our economy and our country, using the distorted truth about the McDonald’s hot coffee case and other cases they created out of thin air.
Numerous states passed tort reform bills stripping the public of its 7th amendment rights. When state supreme courts started finding many of these tort reform bills unconstitutional because they infringed upon a citizen’s right to trial by jury, Rove and company began a new strategy of targeting state supreme court judges in their re-election campaigns who had upheld the 7th amendment liberty, replacing them with judges who were willing to turn a blind eye to the unconstitutional tort reform legislation passed by the state.
The fact is, Americans do not have a frivolous lawsuit problem. The Rand Institute for Civil Justice, recognized as one of the most independent and respected think tanks in the country, found that only 10 percent of people injured by the actions of others seek compensation and only 2 percent of them file lawsuits. Since 1991, tort cases have made up only 5 percent of all civil cases filed. Additional reports have proved that while our population has grown, personal injury lawsuits have decreased by more than 25 percent between 1999 and 2008 alone, and they represent only 1.3 percet of all civil dispositions. Study after study show that frivolous lawsuits are rare, and nearly non-existent. Even Victor Schwartz, a historically huge proponent of tort reform, admitted: “There is no question that it is very rare that frivolous suits are brought against doctors. They are too expensive to bring.”
Using a campaign of deception, tort-reform advocates have turned injured victims into greedy liars and their lawyers into unscrupulous, opportunistic parasites. What big business and the insurance industry doesn’t tell you is that multimillion-dollar verdicts are rare. The Bureau of Justice Statistics found that the median plaintiff verdict is well under $50,000, and only 5 percent of plaintiff verdicts are a million dollars or more.
Healthcare malpractice settlements and verdicts make up only 0.3 percent of national healthcare costs. The National Association of Insurance Commissioners agrees that the total amount of money spent annually defending medical malpractice claims and compensating victims is $7.1 billion. What is actually driving healthcare costs to rise is preventable medical errors, which account for an additional annual cost of $29 billion of the $2.2 trillion of healthcare spending.
Over the past two decades, the number of licensed physicians has significantly increased and is at an all-time high. The number of practicing physicians per number of people in our country has never been higher. From 1990 to 2010, the number of physicians increased by 40 percent, while the increase in the U.S. population grew by only 18 percent. The number of physicians in every state has increased, and in most states the increase in physicians has either matched or outpaced population growth. There is no data to support the claim that capping medical malpractice damages helps to attract or keep doctors. In reality, there are many more doctors practicing in states without damages caps than in those with caps.
There is no evidence that medical malpractice lawsuits drive up malpractice premiums. The National Bureau of Economic Research found that “increases in malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums.” Further, Americans for Insurance Reform found that “rate increases were rather driven by the economic cycle of the insurance industry, declining interest rates, and investments.” And, damage caps do not lower premium rates for physicians. Insurance companies pay less money for malpractice clams in states with damages caps, but they do not pass those savings on to doctors by reducing their premiums. After the state of Texas passed legislation capping damages in healthcare malpractice cases in 2003, the nation’s largest medical malpractice carrier told the Texas Insurance Commissioner that caps had a minimal impact on premium rates, while the company announced a 19 percent increase in physicians’ malpractice insurance rates. In fact, the American Insurance Association has acknowledged that, “we have not promised price reductions with tort reform.”
Tort reform is a fraud against the American people. It benefits neither the public, nor healthcare providers. It simply increases profits for insurance companies and insulates domestic and foreign corporations from compensating people whom they have caused harm. The fraud must be exposed, and all tort reform legislation repealed.
When a person who is injured by the negligence or defective product of another takes their case to trial, they are engaging in an extraordinarily heroic act. To file a lawsuit and litigate through trial is not a simple undertaking. The plaintiff will be attacked by the defendant in all sorts of ways, and the case will likely drag on for years. In the meantime, their life will be put on hold. The willingness to go to trial to gain justice is heroic. This truth must be made known to our citizenry. The public must be made to understand that when a person wins a civil case, they win it for all of us, as well as gaining justice for themselves.
10. Predictive Analytics
“For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.” — Justice Oliver Wendell Holmes Jr.
Predictive analytics is technology that learns from experience and from data to predict the outcome and/or behavior of individuals in order to drive better outcomes or better decisions. It is essentially “machine learning,” which is exponentially getting faster, better and more efficient. Computers can now look at tendencies and trends and can actually learn. By leveraging the quantitative strength of computers, lawyers can more accurately forecast how events will play out in a case and allow lawyers and their clients to avoid costly mistakes, get a better vision of the strengths and weaknesses of a case, and increase the odds of obtaining a favorable outcome.
Predictive analytics uses advanced machine learning algorithms and proven rigorous statistical methods to forecast the probabilities of various outcomes. The probability forecasts produced can aid settlement negotiations and decisions about trial. Potentially, this could save billions of dollars in settlement errors and mitigate the risks of trial. Statistics show an estimated 60 percent of legal cases have settlement value errors. As I noted earlier, 99.75 percent of civil cases are settled. Jury trials today are avoided at all cost due to the perceived unpredictability of a jury.
The practice of law includes prediction. Lawyers predictively answer client questions daily such as, “What are the odds of winning this case, and how much do you think this will cost me?” Even Justice Holmes envisioned over a century ago that “the number-crunching masters of economics” will trump the vast majority of lawyers who still rely solely on experience, historical case information, and intuition to predict the outcome of a case. Even the most exceptional lawyers are inherently limited in their capacity to retain and process the information necessary to make well-informed judgments. Computers, while lacking the ability to frame interesting questions or draw conclusions as lawyers, are far better at storing, processing, and summarizing large volumes of information.
The technological advancement in computing power and data science has ushered in a new era…the era of Big Data. Google, Facebook, IBM, and countless other technology companies, use these new capabilities to market products and ideas with a level of effectiveness never before seen. Predictive analytics is now universally accepted and used widely by many industries to predict outcomes and make better decisions, and was a major factor in predicting the last presidential race. It is imperative that trial lawyers catch up to this data-centric approach found in almost every other industry. The common practice of heavy weighting historical trial outcomes fails to adequately capture present conditions, hampering the accuracy of its predictions. Predictive analytics, unlike historical performance data commonly used for this purpose, takes into account current public sentiment. Real-time predictive analytics provides a great advantage, creating a tool that allows trial lawyers to test the core case arguments identified during discovery against a series of juries, representative of the available jury pool in the location where the trial will take place. A resulting predictive model can be used to inform the settlement negotiations and aid in the decision of moving forward to trial. When cases proceed to trial, the resulting model can be used during jury selection, to insure maximum probabilities of a favorable decision and the largest possible verdict.
When Big Data supplements a community values and beliefs survey contained within a typical jury questionnaire, more information about a juror’s community is available to the lawyers. This increase in information, in turn, provides trial lawyers with more information about what juror traits are beneficial. Research shows that an individual’s online presence can predict that individual’s personality, and Big Data provides more data points on how to determine which individual jurors should or should not be selected. Once the parties determine a community’s attitudes and values, trial lawyers can determine what qualities and traits are desirable in jurors within that community. Trial lawyers can then combine these qualities and traits into so-called “bad juror” or “good juror” profiles to create “persona jurors.”
If we as trial lawyers can pool our data and keep a collective bank of case information and trial and settlement outcomes, the better and more accurate all outcomes become. Data is always predictive, and as the data we collect grows, we can put that into a predictive model to extract the “golden egg,” or prediction model, that will be the key to making better decisions. The more data we collect and input, the higher the statistical significance the outcomes will be and the more we can apply this to building our trial stories, and forecasting trial outcomes with more accuracy.
Intuitive and experiential expertise is losing out to number crunching. In fact, that competition has already been lost. Quantitative analysis has been openly embraced in virtually every major business sector…except law. Shortly, there will be a seismic shift in the legal profession. The smartest, savviest lawyers are now supplementing their practice experience and intuition with insights obtained from big data to best inform their judgment. Predictive analytics and data-driven strategies will be paramount to the legal industry of the not so distant future. Technology that leverages legal data will move the practice of law forward in new directions. There are more tools than ever to facilitate this paradigm shift. Big data and predictive analytics can be used by trial lawyers to improve settlement evaluations, fine-tune trial stories, and make sound decisions of whether to settle or take a case to trial.
For any of you “Trumpsters” who haven’t read a book or current events journal in 30 years, and get all of your information from watching “the shows” and movies, I’m talking about “Moneyballing” trial practice.
Going back is not an option. Moving forward is always the only path. Professionals, just like people, who live in the past and long for the so-called good old days, are already dead. They just don’t know it yet.
It has been nearly 30 years since I walked into a courtroom for the first time to try a case. Yesterday’s art and science of trial work is as extinct as the Yellow Pages. When I began trying cases, my entire trial presentation was hand written on yellow legal pads. My demonstrative exhibits were blow-ups glued to white cardboard. All letters, legal briefs and pleadings were dictated into hand-held mini cassette recorders and the tapes were transcribed by legal secretaries. I did all my legal research in an actual library with real books. We had to actually file hard copies of our pleadings at the courthouse and physically serve them on opposing counsel. Today, my firm uses no paper, except when the trial courts makes us present a set of exhibits on paper for their records. We have no legal secretaries, only paralegals. All of our lawyers do all their legal research from their computers and type their own letters (or more often, emails), legal briefs and pleadings. We take nearly all out-of-town depositions from the comfort of our officers or conference rooms using digital conferencing. Trials are prepared and presented with laptop computers, iPads and massive digital monitors, using trial presentation software and applications…many of which we have developed within our firm. Instead of legal secretaries, file clerks and runners, we employ trial presentation and animation designers, software programmers and e-discovery miners.
Trying to go back is like wearing a 30-year-old suit that looked good when you were 27. It doesn’t fit, the fabric sucks, and you will never look 27 again, so go buy a new suit that fits the body you have today. We all need to adapt to the present and anticipate our future circumstances. We must re-think the way we prepare and try cases, as well as how we manage the business of law, if we want to stay relevant and survive the future of trial practice.
I believe in the jury trial. I define who I am as a “trial lawyer.” But, I also understand that in order to resurrect “The American Trial Lawyer,” we must possess not only the will to try more cases, but the willingness to change the way we try them.
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.\