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staff reporter Mayville, n.y.-The judge emerged unhappy from his chambers. The jury had been deliberating too long. He was contemplating drastic action. Three times previously, he recalled, juries had been out this long. Each time he’d sent his clerk to ask if they were close. Twice they’d reached a quick verdict. He glanced at the clock. The time was fast approaching, he said. The jury had already deliberated more than two hours. Two hours? For Judge Joseph Gerace, two or three hours can be a long time. The entire trial, which included copious medical records, a surveillance video and the testimony of the plaintiff in the accident suit, had taken only four. Gerace was presiding over a so-called summary jury trial-a form of alternative dispute resolution that he hopes to see incorporated into the judicial system across New York state. To date, scattered judges around the country have used it on an ad hoc basis. Summary jury trials are the equivalent of Reader’s Digest stories. They’re held before real judges and juries, but everything is compressed. Judges impose different rules. In his court in Chautauqua County, Gerace talks to the jury panel for about 15 minutes. Then he gives each lawyer 15 minutes to pick six jurors and an alternate, 10 minutes for opening statements, an hour to present the case and 10 minutes for closing. No more than two witnesses may be called by each side. If the opposing lawyer chooses to cross-examine a witness, the time it takes is deducted from the hour. Additional testimony may be presented in documents, including depositions, that can be read by jurors during deliberations. Juries often come back in well before two hours are up. Unless the parties agree in advance to be bound by the verdict, which is rare, it is nonbinding, though jurors aren’t told that. In his one case in which the jury couldn’t agree even after his clerk arrived, Gerace said, he simply summoned them back and polled them in open court. The parties left with a vote rather than a verdict. But that didn’t negate the value. When trials are nonbinding, their real benefit is as a settlement tool, he said. The trial on June 9 was one of 15 that Gerace scheduled for the week-mostly auto accidents and slip-and-falls. That’s 14 more than he usually schedules, but he’s on a mission these days. At age 76, Gerace (pronounced Juh-RAH-see) will be forced to retire at year’s end. Before he does, he wants to demonstrate why each judicial district ought to adopt rules that would require judges to submit every case they can’t settle or otherwise resolve to a summary jury trial calendar-unless they determine a case isn’t amenable. What better way to argue his point, Gerace reasoned, than to show how quickly it could help clear a backlog. And not just here in this rural county of 140,000, 75 miles southwest of Buffalo. He has the attention of the state’s Office of Court Administration, sponsor of the Jury Trial Project. Gerace is co-chairman of the Alternatives to Trial Subcommittee, which has focused on summary jury trials. Some judges schedule these trials only with the parties’ consent, but Gerace isn’t one of them. He won’t use them for medical malpractice cases without such consent, but otherwise they’re mandatory. About 60% settle before trial. “Setting the date settles the case,” Gerace said. Of the 15 scheduled last week, five settled and two were stayed when defendants filed for bankruptcy. When the cases go to trial, Gerace tries to convince the parties to make the results binding, he said. About a quarter of the litigants agree. Even though three-quarters don’t, he said, almost all settle without a full trial. During the five years he’s been doing this, of 59 summary jury trials, only six later went to full trials, and the results of four mirrored the summary versions. What’s more, not one has occurred in the past 18 months. And in five years, he’s actually tried more summary trials than regular jury trials: 59 v. 51. J. Kevin Laumer, the plaintiff’s lawyer in the accident case, guessed he’s tried about 10. Most were binding with high-low agreements, though last week’s wasn’t. His client, Robert Gutknecht, had been rear-ended while sitting at a stoplight in April 2000. The defendants-driver Douglas Fischer; Fern Fischer, his wife and owner of their car; and the Progressive Insurance Co.-stipulated to liability. Gutknecht claimed he suffered from chronic pain in his neck, shoulders and back. For most of the time since his accident, he’s been unemployed. Laumer, a partner at Jamestown, N.Y.’s Fessenden, Laumer & DeAngelo, was happy to try the case without a binding verdict, as the defense insisted, because he felt it would facilitate settling, he said. The jury returned a verdict of $507,000, which, he expects, will help. Summary jury trials have much to recommend them, Laumer said, but it’s a mistake to attribute too much to the format. “It’s not whether you’re in a summary jury trial or not; it’s what kind of jury you get,” he said. “The joy of these cases is you can get the medical evidence in front of the jury.” Seen as cost-effective They’re also cost-effective, he said. “When the doctors are costing thousands and thousands of dollars and you have a relatively small policy, it doesn’t make sense. You’ve got to have a different way to try cases.” One doctor wanted $5,000 just to be deposed in his office, Laumer said. He used the medical records instead. His biggest reservation is the burden of laying out his case so briefly. The format, he said, “needs to be fine-tuned occasionally.” Gerace has made modifications. Lawyers can supply jurors with a binder of documents, and Gerace sends them his charge. After closing statements, jurors may submit written questions. He reviews these with the lawyers and, if the information is admissible, allows them to answer. As he told jurors early in the trial: “We think that’s particularly important in a summary jury trial, where we are compacting everything into a short period of time.” For Kelly Philips, who represented the defendants, the trial was a first. An associate in the Buffalo, N.Y., office of Syracuse, N.Y.’s Sugarman Law Firm, Philips has been practicing law since January 2001, but had no experience with this kind of trial. It was “very useful,” she said. “It’s probably the best way to get a realistic value of the case.” When nonbinding, it’s also a cost-effective way to test the waters, she added. “We wanted the jury to see everything about the case,” she said, “the good, the bad and the ugly.” When the plaintiff talked about tentative plans to undergo surgery, Philips didn’t object. “We decided we were going to see how the jury felt about the surgery question.” She was particularly interested in how they would receive the surveillance tape, shot by private investigators, which showed Gutknecht shoveling snow and driving a car. Jurors are sometimes angered by tactics they perceive as “an invasion of personal privacy,” she said. When she showed it, she watched the jurors and thought they reacted with “looks of skepticism.” Some lawyers troubled What troubles attorney Dalton Burgett about summary jury trials is that defense lawyers can get a free peek at the plaintiff’s strategy. “How excited would you be, if you were the plaintiff, to tip your hand in a complex case and then the defense rests?” he said. “That’s the sort of thing that sticks in a plaintiffs’ lawyer’s mind.” A partner at Burgett & Robbins, also in Jamestown, Burgett has tried four to six summary cases, he said. He tries to make them binding, with high-low agreements, to avoid both doing them twice and tipping his hand. Like Laumer and Phillips, Burgett thinks they work particularly well in simple cases, especially when the costs of experts can be “almost prohibitive.” The lawyers also thought the format would have trouble accommodating products liability or catastrophic injury cases. Twice Gerace ordered summary trials that Burgett thought were inappropriate. Once he convinced the judge to relent. “I’m stoic about it,” he said. “He’s the judge and he’s managing the case. He sees far more summary jury trials than I do. And he sees the benefits.” Of course, lawyers who appear before him can’t afford to “throw a fit,” as Gerace put it. While local criticism may be muted or just plain mute, elsewhere critics have not been so reticent. Perhaps the best-known critic is Judge Richard Posner of the 7th U.S. Circuit Court of Appeals, who wrote a 1986 law review article questioning the imposition of these trials on unwilling litigants, and the extravagant claims its proponents sometimes make. The year after his article appeared, the 7th Circuit ruled that district courts could not compel parties to participate (Posner was not on the panel). Strandell v. Jackson Co., Ill., 838 F.2d 884. Six years later, the 6th Circuit followed suit. In re: NLO Inc., 5 F.3d 154. The concept was the brainchild of Thomas Lambros, a federal judge in the Northern District of Ohio from 1967 to 1995. Now retired from the bench, he still practices in Cleveland, and Gerace invited him to preside over two cases last week-a kind of homage to the inventor. Searching for a crystal ball The impetus was his frustration at his growing backlog of civil cases, Lambros said. It irked him that he could envision fair resolutions, based on many years of experience, but the parties couldn’t. What he wished for, he said, was a crystal ball. And that’s how he lit on these snapshot trials. In 1980, when he started, witnesses weren’t called. Lawyers presented documents, summarized evidence and argued cases. Verdicts gave litigants an idea of what their cases were really worth-independent of what their lawyers whispered in hallways. At a minimum, “it’s a worthy tool for case evaluation.” Despite its perceived limitations, Lambros said he’s used the technique to settle cases as complex as asbestos mass torts, patent infringement and antitrust litigation. More complicated cases take several days or even a week, he said, but may save months of trial time. And what do jurors think? James Sharpe, foreman of the jury in Gutknecht’s case, came away generally impressed. In court, when the judge asked for comments after the trial, he expressed reservations about a life-changing case decided in a day. But he added: “I think we did very well with what we had.” In an interview two days later, he called the notebook of medical documents “a Godsend-I couldn’t imagine doing this without one.” He likes the idea that courts are experimenting. Still, he did have one final reservation. It reminded him a little of People’s Court, he said . “And you don’t necessarily want to have things decided between the commercials.” Hechler’s e-mail address is [email protected].

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