The New Endangered Species

Zoe Tillman

Corporate Counsel

09-01-2012

A version of this story appeared in The National Law Journal, a sibling of Corporate Counsel.

A group of panelists at the American Constitution Society's annual convention in Washington agreed that jury trials in civil cases, especially in the federal courts, are on the decline. But they disagreed about whether that was a bad thing, and how the trend might be reversed.

The panel on June 15 was moderated by New York University School of Law professor Arthur Miller. He cited statistics from the Administrative Office of the U.S. Courts showing that, in recent years, less than 2 percent of federal actions went to trial and less than 1 percent were tried by juries.

More than two dozen panelists suggested reasons for the decline. Among their explanations: a shift to arbitration, the cost of litigation, and the shrinking number of trained trial attorneys.

John Vail, vice president and senior litigation counsel at the Center for Constitutional Litigation, said that jury trials can work in civil cases, and that the responsibility falls to attorneys to do a better job of explaining their cases. When Miller asked why it wouldn't be preferable for judges to decide cases in areas in which they have expertise, Vail replied that, unlike judges, the virtue of juries is that they don't have preconceptions about issues.

F. Paul Bland Jr., a senior attorney at Public Justice, said he thought the problem was that the shift to arbitration meant that more consumer cases simply disappear and never make it as far as an arbitrator. Mayer Brown partner Andrew Pincus countered that in some instances, cases don't make it to arbitration because the plaintiff's claim is satisfied right away.

But many cases are arbitrated, and some lawyers rued that trend. Barbara Hart, chief operating officer and securities litigation head at Lowey Dannenberg Cohen & Hart, said that jury trials in civil cases are important to keep the public informed. "What we lose in arbitration is the sunshine," she said.

The jury selection process was cited as another reason why attorneys in civil cases are moving away from trials. Josh Dubin, who runs a legal strategy consulting company called Dubin Research and Consulting Inc., said that judges aren't allowing enough time for voir dire, which undermines the faith of lawyers and their corporate clients.

David Brodsky, a retired partner at Latham & Watkins, said that electronic discovery has pushed up the costs of going to trial over the past decade. Nathan Finch, an attorney with plaintiffs firm Motley Rice, said that his clients want to try their cases before juries, but it's become much more difficult and expensive to get past summary judgment.

Wiley Rein partner Andrew McBride questioned whether the Seventh Amendment right to a jury trial in civil cases was as critical to democracy as the right to a trial in criminal cases. He said that expert judges could decide certain complex cases—he cited patent disputes as an example—without harming society.

His comments sparked a flurry of protests from other panelists. Bland argued that arbitration too often allows the rich to control who decides cases, while juries can't be bought. Salvatore Graziano, a partner at Bernstein Lito­witz Berger & Grossmann, asked McBride how, as a former prosecutor, he could trust a jury to decide whether to send a person to jail for life but not trust them to decide complex civil cases.

Regardless of the reasons, Labaton Sucharow partner Christine Azar lamented the fact that the decline in jury trials means that a whole generation of lawyers is not being trained to try cases. "The entire profession loses," she said.