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Published: Saturday, 6/2/2007

Dwindling jury trials hurt judicial system

BY RICHARD M. KERGER

FOR SEVERAL years, lawyers and legal scholars have studied and debated the significant decline in the number of civil jury trials, but the average citizen probably has heard little of the discussion.

To illustrate the point, in 2005 in the Northern District of Ohio (the federal court system that stretches west from Pennsylvania to Indiana and south from Michigan to an area 15 or so miles below Lima), there were only 41 jury trials in the entire district.

This is an average of roughly three trials for every federal judge in the district. A similar trend has been noted throughout the United States and the phenomenon is not confined to the federal courts. The drop is seen in state courts as well.

To many this is wonderful. Insurance companies hate litigation and have decried the "litigation explosion" for the past 20 years. Doctors who have been the targets of malpractice cases can take comfort in the decline. But there is a danger here.

The reason we have lawsuits is that we have differences of opinion on many issues, ranging from whether someone should continue to be employed or whether a particular business tactic is just a good practice or a violation of the antitrust laws. I do not believe the reduction in trials is because there has been any reduction in the number of disagreements. So how are we resolving our disputes if not with jury trials?

There are some systemic explanations. For example, many employers now have workers sign arbitration agreements which means that in the event of a termination or other employment practice which the individual wishes to challenge, they must arbitrate the dispute rather than seek relief in the courts. Manufacturers are using similar provisions to require consumers to resolve complaints about the quality of products through an arbitration process.

Another factor is that most courts use a technique called alternate dispute resolution to try to settle lawsuits. Experienced lawyers and judges meet with the opposing counsel and their clients to come up with a resolution that stops the matter before it reaches a courtroom.

Yet another cause is that judges are increasingly willing to grant motions which dispose of cases short of the trial. Called "summary judgments" these motions are often sought by defendants.

Certainly the skill sets of the lawyers claiming to be trial lawyers are being reduced. As lawyers have fewer opportunities to try cases, they will be more nervous about stepping into court and trying to settle disputes. This will lead to more settlements and fewer trials.

All of this raises the question: Is the right to a trial by jury, provided by our Constitution, irrelevant? Is the jury trial something that made sense in 1776 but is less relevant 230 years later? The Constitution could be amended to do away with the right to a jury trial. We could require that all disputes be arbitrated. We could require that all disputes be resolved through negotiation without any having the recourse to the courts. Or do we just want to putter along with the right to a jury trial being what aging lawyers describe to their grandchildren?

I have a bias. While I know many judges and have a high regard for all of them, the most bizarre judgments I have seen have come from judges. Having eight or 12 minds in the jury box hearing the evidence, considering the law, and then deciding the case tends to produce results which I think are more in line with what the "justice" of the situation would require. I prefer jury trials in most cases, and I say that as a lawyer whose practice is almost evenly divided between representing plaintiffs and defendants.

That said, if as a society we have concluded that the cost and uncertainty of the jury system is not worth the perceived benefit, then it seems we should act decisively to remedy that situation. But if we do not, then we should just as decisively try to assure that the jury trial is not some nostalgic concept that made sense when Gregory Peck played Atticus Finch in "To Kill a Mockingbird."

Ask judges how they feel about jury trials and support those who support that right. Monitor the performance of judges to see if they practice what they preach about favoring jury trials. Be willing to serve as jurors when called. And do not become influenced by interest groups who tell you that normal citizens who are competent to elect our public officials lose all reason when they become jurors and turn in huge and erroneous verdicts.

Long ago in England, the nobles were forced to accept the Magna Carta, perhaps the noblest document ever drafted by free men. It provided assurances that the kings could not ride rough shod over the rights of the average man, and also provided the right to a jury trial.

While most people do not become parties to lawsuits, we all benefit from a system which promises our friends and neighbors a right to present their claims to their equals for an answer. The jury trial reduces tensions by simply being there.

We need to look long and hard at departing from an established dispute resolution mechanism that has existed for more than 600 years. We need to look at the consequences of what its loss might mean because once lost, it will not be easy to reacquire.

Thomas Jefferson put it best: "I consider trial by jury as the only anchor ever yet imagined by man, by which government can be held to the principles of its constitution."

Richard M. Kerger is a partner in the Toledo law firm of Kerger & Associates and author of "The Art of Being a Trial Lawyer" and "The Client's Guide to Litigation."



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