Oregon State Bar Bulletin — MAY 2007
Parting Thoughts
Trial Courts without Trials?
By the Hon. Garr (Mike) King

Thomas Jefferson said: "I consider (trial by jury) as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." Chief Justice William H. Rehnquist echoed this sentiment: "The founders of our nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption. … (J)uries represent the layman’s common sense and thus keep the administration of law in accord with the wishes and feelings of the community."

There is no doubt the number of jury trials has been steadily declining. The reasons are many and have been addressed in many forums. But the jury trial remains the key to our judicial process. As an instrument of justice, and for the resolution of disputes, it is quite simply the centerpiece of our justice system.

The early, economical and fair resolution of disputes by settlement and by alternative dispute resolution processes are an important part of, and are made possible by, the trial process. Pretrial discovery identifies issues and facts that establish the validity or lack of validity of claims and defenses. Pretrial rulings resolve or lead to the resolution of many cases. A firm trial date promotes settlement. A litigator’s job is to obtain the desired result for the client. As a negotiator, a lawyer will be much more successful if the other side knows that the litigator is willing and able to take a case to trial.

Trials and verdicts furnish the ultimate measure by which we judge the value of a claim. The history of verdicts provides a basis for mediators, lawyers and litigants to set a realistic goal for the case. Trials provide a public forum to define acceptable behavior, teaching that even government can be wrong, that major corporations can make mistakes, and that individuals can find justice.

Jury trials allow our citizens to participate in the judicial process. Public perceptions of access to justice and fairness are framed by the courtroom. Trials provide the basis for appellate decisions and thus the development of the common law.

While every reasonable effort should be made to resolve disputes early and economically, that is not always possible. Take for example the 2004 case of United States vs. Sami Al-Hussayen, in Boise, Idaho. Defendant was a graduate student at the University of Idaho accused of terrorism. After a trial of three months he was acquitted on the terrorism charges. There was no way to resolve that case. The government insisted that the defendant admit to terrorism and serve a long prison term. A trial conducted by an experienced trial lawyer was the only alternative for the defendant.

There are many cases that cannot and should not be settled. Claims are made and defended in good faith where the parties’ positions are so far apart the best alternative is a trial. Judges should not embrace a philosophy that actively discourages resolution by trial. Trial judges should not forget that they were elected or appointed to be trial judges. Lawyers who are advocating their clients’ position in good faith should never be made to feel guilty when they and their clients believe that trial is the best choice in any particular case. A right to trial is guaranteed by the Constitution.

There is no question litigation is too costly. In many cases it is an unpleasant experience for parties. It is the responsibility of judges and lawyers to engage in creative thinking to improve the trial process and preserve the jury trial through self-imposed restraints on discovery, improved presentation methods and continued emphasis on professionalism and civility. In Oregon, we are blessed with an outstanding trial bar, dedicated to the professional representation of their clients. They are proud to be trial lawyers. They are committed to mentor and train trial lawyers. We need only attend one of the numerous trial competitions around the country to recognize the enthusiasm and hard work displayed by young law students in their goal to become "trial lawyers."

Trial lawyers are problem solvers. We need a large pool of experienced trial lawyers to assist litigants through the trial process and in court when differences cannot be resolved. We will only have that pool if we reverse the trend of the vanishing trial. This is and will continue to be a goal of trial lawyers and trial judges across the country.

Judge King is a United States District Court judge. He was a trial lawyer from 1963 until his appointment in 1998. His comments are in response to the Parting Thoughts of Judge Kristena LaMar in the January 2007 OSB Bulletin, "Are Trials Passe?"

© 2007 Hon. Garr (Mike) King

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