Vanishing Trial Experience Threatens Justice System

By Stuart Sobel

In our social and commercial society, historically, disputes were settled in civil courtrooms—through jury or bench trials.

Few would question the significance of jury trials in our system of justice. They represent a fundamental right that is critical to our democracy and is guaranteed by both the U.S. Constitution and state constitutions.

Young lawyers learned by trying smaller cases, working their way up to trying more complicated, bigger-dollar cases. It was this way when I began practicing law, almost 36 years ago. It was not uncommon to try six to eight jury trials in a year.

However, trials are expensive. They are also replete with risk and uncertainty. These are the very qualities of trials which have fueled the growth in alternative dispute resolution and the explosion in mediations.

Alternative dispute resolution has grown in acceptance and been very effective. Mediations are successful and most cases settle. Litigants avoid the expense and uncertainty of a trial, control their destiny and move forward with their lives.

Arbitrations have grown in popularity, in part based on a desire to have a professional with industry-specific knowledge decide a case involving a particular industry. As a result, hardly any cases get tried any more. Fewer still are tried to a jury.

Ten years ago the American Bar Association published a report titled "The Vanishing Trial," which concluded that trials were becoming an endangered species in our judicial system.

The report, based on an analysis of massive amounts of data, illustrated how the number of trials and trial rates had declined dramatically during the previous four decades, particularly in the federal courts where the rate for civil trials had dropped from 11.5 percent of filed cases in 1962 to 1.8 percent in 2002.

The decline has continued during the subsequent decade, and the rate of jury trials has seen the sharpest reduction.

A perhaps unanticipated result of this decline is that today's generation of young lawyers and future judges has very little trial experience. In fact, the vast majority of young lawyers and the next generation of judges are not being availed the opportunity to gain even the barest modicum of trial experience.

In the nation's federal courts, the rate of civil cases has continued to decline from the 1.8 percent in 2002 to 1.2 percent in 2012. U.S. district courts had 5,325 civil and criminal jury trials in 2008, down from 6,839 in 2000 and 9,844 in 1990. Statistics from the Administrative Office of the U.S. Courts demonstrate that, in recent years, fewer than 1 percent of federal actions had a jury trial.

Florida circuit civil cases have seen an even sharper decline. According to the 2012 final report of the Florida Bar's Special Committee to Study the Decline in Jury Trials, in fiscal year 1986-87 there were 155,407 civil cases and, of those, 2,413 were disposed of by jury trial, or 1.6 percent of total dispositions.

In contrast, in fiscal year 2009-10, there were a total of 401,463 circuit civil dispositions, but only 879 were by jury trial, representing 0.2 of a percent of the total number of circuit civil dispositions.

While the numbers for 2009-10 may be somewhat skewed due to the number of foreclosure cases pending in the circuit courts, an examination of fiscal year 2006-07 (before the foreclosure case increase) shows that of the total of 166,343 circuit civil case dispositions, only 1,017, or 0.3 of a percent, were disposed of after jury trial.

About 99.7 percent of cases are resolved without a jury trial. While this may be a testament to other means of resolution, it drastically shrinks the universe of opportunity for trial experience.

Now as a generation of lawyers matures without the cauldron of the courtroom within which to galvanize their skills, many of today's attorneys seek desperately to avoid trial—exacerbating the loss of experience.

And since our judges are most often selected from our bar of attorneys, those lawyers without trial experience become judges without trial experience. Trials conducted by these judges will become less dependable as an effective means for dispute resolution.

Ultimately, this will intensify the public's negative perception of our justice system in general, and it will undermine the public's confidence in the reliability of a trial as the ultimate means of dispute resolution in particular. Scary.

Will trials, as a method of dispute resolution, disappear entirely in another few generations? Is there a way to mentor young lawyers in actual real-world scenarios so that they can carry on our centuries long tradition?

There are no easy solutions to the waning use of trials in the U.S. Certainly changes adopted by law schools in legal education and training represent a starting point to address the issue. Controlling the cost of trials (by shortening the pretrial lead up and streamlining presentations) will make them a more attractive alternative to settling. Settling, after all, is never very satisfying.

The old saw that "a good settlement is one where both sides leave equally unhappy" should cry out for a better solution. Can we control the out-of-control discovery and over-lawyering of cases before trial so that budgets are not exhausted and litigants can actually afford the risk of trial?

Hourly lawyers and lawyers wary of malpractice tend to over-lawyer cases until they get close to trial. Then they hedge their bet and begin to persuade clients that trials are just too risky.

Perhaps, if we look to our own practices, we can instead do only what is really necessary to prepare to present a case in trial—and then present it.

In the process, we save clients money, gain trial experience and restore faith in the system. Just a thought.

Stuart Sobel is an AV-rated board certified construction lawyer, a certified circuit civil mediator and, since 1995, a shareholder with the Coral Gables-based law firm of Siegfried Rivera He is active as a neutral on the American Arbitration Association’s Large and Complex Case Panel and as a Fellow in the American College of Construction Lawyers, and he has tried dozens of cases to verdict. www.srhl-law.com, [email protected].

Reprinted with permission from the “July 3, 2014 edition of the “Daily Business Review”© 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, [email protected] or visit www.almreprints.com.