|Oregon State Bar Bulletin NOVEMBER 2009|
Some counties in Oregon go years without having a single civil jury trial.
Some partners in Oregon civil law firms have never tried a case to a jury.
If trial by jury in civil cases is — as James Madison said in 1789 — “as essential to secure the liberty of the people” as any right of nature, our liberty is in peril.
What could reverse the decline in the number of civil cases being tried to juries in Oregon’s state and federal courts and their counterparts nationwide? Providing civil attorneys with more trial experience so they have the confidence to try their big cases before juries? Reducing the cost of trial and/or otherwise enhancing the desirability of trial as a form of dispute resolution?
Or does anyone even care if the civil jury trial goes the way of the colonial wig?
The answer to the latter question, at least, is clear: the issue triggered a passionate debate among Oregon’s trial lawyers and judges after Kristena LaMar, Multnomah County’s chief dispute-resolution judge, wrote a bar Bulletin article entitled “Are Trials Passé?” in 2007.
“Some people thought it was deliberately provocative,” says LaMar of her article, in which she said that some disputants ‘simply don’t have the time to participate in our rather quaint and archaic rituals preceding and including trial.’ “Others thought I was dead serious.”
“The title had a question mark,” LaMar points out. “I wanted people to start talking about lawyers’ views of trials and whether the experience was more optimistic and fun for them than it was for their clients. I’m not disputing the value of jury trials, but I hear from people who just wanted their medical bills paid, and now they’re in the middle of WW III.”
But James “Jim” Hennings, the retired longtime head of Portland’s Metropolitan Public Defender Services, sees the subject of jury trials from a quite-different angle.
“Most Americans are more likely to experience the American justice system as a juror than as any other type of participant,” says Hennings, whose former office takes part in a program to give civil lawyers trial experience. “The jury trial is the last vestige of public involvement in the system. I’m absolutely convinced that if we lose the jury trial in civil cases, we will lose it in criminal cases.”
The right to a jury trial existed at English common law, and many English colonies, including those that became the United States of America, adopted the system.
Madison and his fellow patriots took the right extremely seriously.
“I am on the panel of judges who provide a welcome and orientation speech to the 150 to 200 jurors summoned to the Multnomah County Circuit Court every morning, Monday through Thursday,” says Judge Janice Wilson, who chairs a county judicial committee that is studying the decline in civil jury trials. “I tell the jurors that people have fought and died for the right to a jury trial. In fact, the threat to the right to trial by jury is specifically listed in the Declaration of Independence as a justification for going to war in 1775.”
This right to a jury trial in a civil case is guaranteed by both the Seventh Amendment to the U.S. Constitution and Article I, Section 17 of the Oregon Constitution. But, while those constitutional rights have remained in place since 1791 and 1857, respectively, how civil cases are resolved has changed.
In Oregon, these changes have included mandatory arbitration of claims for $50,000 or less, which went into effect in 2005, and the merger of the old state district court — whose jurisdiction included civil claims for $10,000 or less — with circuit court, which went into effect in January 1998.
“Before the consolidation of the district and circuit courts, a civil litigant who lost at the six-person jury district-court level had the right to appeal to the circuit court and receive another trial on the merits: a trial de novo,” says retired Oregon Chief Justice Edwin “Ed” Peterson. “After consolidation, there was no longer any right to a trial de novo in any trial court, and all juries — absent a stipulation by the parties — were 12-person juries.”
Because American jury trials tend to be of high-profile criminal cases, the general public tends to overestimate the frequency of civil jury trials, according to that highly authoritative legal source, Wikipedia.
But behind the media hyping of high-profile criminal cases, and largely unnoticed by the general public, the percentage of civil cases resolved by jury trial is declining.
Nationwide, approximately two percent of state civil cases are resolved by jury trial, according to the National Center for State Courts. But in Oregon, the figure was less than one percent in 2001, according to statistics maintained by the Office of the State Court Administrator (which warns that its statistics are only as good as the methods counties use to collect and report their data).
By 2008, that percentage had dropped even lower — to only four-tenths of one percent.
Multnomah County, which has by far the state’s largest number of jury trials, also had less than one percent of its civil cases (not counting forcible entry and detainer cases) terminated by jury trial in 2008.
Alarmed by these numbers, Wilson’s judicial committee commissioned a survey of Multnomah Bar Association (MBA) members in January.
Of the 452 lawyers who responded, 47.2 percent said that they personally had tried fewer jury cases over the last five years. Almost 28 percent said that their bench trials also had decreased.
“When I started practicing in 1971, I tried two-three cases a week in state (district) court,” says Portland lawyer Peter Richter, one of the founders of the bar’s Oregon Trial Advocacy College. “Now I try two to four cases a year.”
A “recent and steep” decline in the number of civil cases being tried to juries also has occurred on the federal level nationwide, according to an article published in the Journal of Empirical Legal Studies in November 2004.
“Over the past generation or more, the legal world has been growing vigorously,” noted the article’s author, Marc Galanter. “It seems curious, then, to find a contrary pattern in one central legal phenomenon…one that lies at the very heart of our image of our system — trials.”
Many people assume that increased use of arbitration and mediation is behind the decrease in the number of civil jury trials.
“If you don’t think that alternative dispute resolution is ‘where it’s happening,’” wrote LaMar in her article, “just read the advertisements in the bar Bulletin. Contrast this publication with its predecessor even 15 years ago; no one advertised as arbitrators, let alone mediators.”
But when the Multnomah County survey asked MBA members, “Which, if any, of the following court-related factors discourage your or your client’s use of jury trials to resolve civil cases? (check all that apply),” the judges received a surprise.
The number-one answer — checked by 40.9 percent of the respondents — was “Not enough certainty (the) case will be tried on (the) trial date.”
Wilson says the committee’s members were “shocked” by that response.
“We understand that they can’t have so many expensive expert witnesses and not have their cases go out,” she says. “But in Multnomah County, lawyers can go in 30 days ahead (of the scheduled trial date) and get their case assigned to a trial judge. That’s different from having the case designated as ‘complex’ (and assigned to a judge for that reason). This response was very troubling to us.”
“Mandatory arbitration” was the second most-frequently checked answer, at 38.8 percent.
When the MBA members were asked, “Which, if any, of the following non-court related factors discourage your…use of jury trials to resolve civil cases? (check all that apply),” a whopping 83.3 percent of respondents checked “Jury trials are too expensive.”
Much of that cost is incurred before a jury even is summoned.
Portland City Attorney Linda Meng, who spoke on the topic of civil jury trials to the Oregon Chapter of the Federal Bar Association last year, says that the cost of discovery is partly to blame.
“Discovery can be an extremely expensive process, and e-discovery may make it worse instead of better,” said Meng. “I have been involved in litigation where there were rooms full of discovery documents, but the volume of potential documents has expanded beyond anything I can comprehend.”
Regardless of what is causing the number of civil jury trials to decline, not everyone agrees that this is a bad thing.
After all, as Chief Justice Warren Burger said 25 years ago, in 1984, “The entire legal profession…has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers of conflicts. For many claims, trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.”
LaMar says she’s seen this in her own practice, even in cases like divorce that aren’t tried to juries.
“…[L]itigation is often detrimental to long term satisfaction with the outcome,” she wrote in “Are Trials Passé?” “As one husband in a divorce trial remarked to me: ‘I didn’t know I was such an evil person until I read my wife’s lawyer’s trial memorandum.’ What effect will those words have upon his ongoing relationship with her or their children — or their eventual grandchildren?”
But Wilson says that she has had a different experience.
“On several occasions, I have had losing parties thank me after a trial and say that, although they hoped for a different result, they felt it was a fair process, they felt they were heard, they were glad they had their day in court and they were ready to move on,” she says.
And “alternative” forms of dispute resolution, such as arbitration and mediation, have drawbacks of their own.
“I understand the impetus of the use of arbitration is to take some of the burden off of the court system — to provide a faster and cheaper alternative,” Meng told the Federal Bar Association members. “However… I believe there has been a pull-back. At the city (of Portland), we no longer routinely put arbitration clauses in our contracts, and we look hard at the particular situation when people want to put them in.”
“…[T]o my mind,” Meng said, “arbitration has the risks of court litigation but with none of the safeguards. …[A]ttorneys going into arbitration generally feel they are obligated to their clients to do discovery and prepare in a way very similar to going to trial. With no evidence rules and no appeal, you are at the mercy of the arbitrator.”
As for mediation, Portland lawyer Thomas Christ says that “When [it] succeeds — which isn’t all the time — it’s not because it’s an ideal form of dispute resolution.”
“A successful mediation is not, as some believe, a win-win proposition,” Christ wrote in a letter response to LaMar’s Bulletin article. “In fact, it could be viewed as more of a lose-lose proposition. Both parties have to give up something — have to accept less than what they want or believe they are entitled to. That’s why mediators are so fond of quipping, at the end of the day, that ‘it must be a good deal because everyone is unhappy.’”
Not only that, said Christ, but in his view, whatever success mediators have is because a jury is standing by.
“Fear of being the loser (at trial) is what motivates parties to mediate and, while mediating, to make the compromises that settlement requires,” Christ said. “Trial, then, is what makes mediation possible.”
Proponents of civil jury trials also believe that such trials are necessary for establishing community standards for damages and behavior.
“It is jurors who tell us how our community values a particular type of injury,” Wilson points out. “Sometimes, especially in the mass tort context, the parties need to try a handful of cases to learn how a jury is likely to look at the facts and assess damages so that the other cases can be settled.”
And sometimes cases need to be tried — just because they need to be tried.
“I regret that so much emphasis is placed on ‘How can we not try this case?’ when there are times when trial is a necessary step of the process,” says Pendleton lawyer W. Eugene “Gene” Hallman, a member of an ad hoc, statewide committee that is working on the civil jury-trial issue. “The only reason you settle a case is because you think you’re going to do less well in front of a jury. I don’t think anybody would say settlement is a bad thing, but we need to get past the idea that if you go to trial, you’ve failed.”
Lawyers and judges who are concerned about the vanishing civil jury trial also fear that trying and judging fewer cases will lead to fewer lawyers and judges who know how to try and
“When I was getting close to becoming a partner in my old firm — a litigation partner — I had never tried a case,” Meng told the Federal Bar Association last year.
But Hallman says the situation actually is worse than Meng realized: Some lawyers have made partner without ever having tried a case.
That lack of jury trial experience presents several problems.
One is that they may be afraid to try a case before a jury.
“Artillery is the last argument of kings,” points out Portland lawyer Daniel “Dan” Skerritt, another member of the statewide committee. “If you’re going to settle a case, it’s a huge advantage to know another perfectly acceptable way to resolve it: you don’t have to take a bad settlement because you’re afraid to try a case.”
Another is that their clients may be penalized if they go to trial without the requisite experience.
“Retired judges and other skilled mediators can usually get young lawyers the same or a better offer than they would get at trial,” explains Newport lawyer William “Bill” Barton. “It’s almost an ethical problem if they (the younger lawyers) turn down offers that are higher than they’d get at trial, particularly with the additional components of trial risk, costs and escalating contingency fees.”
“Some people hold the view that going to a jury trial is a failure,” Barton continues. “But another view is that fewer and fewer lawyers have the ability to try a case to its maximum potential before a jury.”
And it’s not just lawyers who lack the skills to handle a civil trial.
In the Multnomah County judges’ survey of MBA members, the third and fourth most frequently checked answers to the question, “Which of the following court-related factors discourage your…use of jury trials…? (check all that apply)” were “Judges not familiar with issues” and “Rulings not predictable.”
That wouldn’t shock former MBA President Thom Brown, who observed, in a Multnomah Lawyer column published last year, that “…the vast majority of trial judges don’t have any civil litigation background.”
For lawyers and judges who believe that the demise of the civil jury trial must be prevented, the crucial question is, how? By having civil lawyers learn to try cases by doing trial-intensive stints as prosecutors or defense attorneys? By instituting a “fast-track,” jury-trial alternative to mandatory arbitration? By rethinking how civil cases are prepared for and tried under the existing system?
In fact, all of these options are being implemented and/or being discussed.
Hallman, Skerritt and other members of the statewide committee already have initiated the first fix — giving civil attorneys trial experience by having them “intern” as deputy district attorneys and public defenders.
“…young lawyers are not getting the trial experience we all got at that age, and public agencies are suffering tremendously for resources,” says Skerritt. “We came up with a three-way partnership: a relatively new (civil) lawyer who wants more trial experience; his or her employer and a public agency. The commitment, on the public agency’s part, is to give these people real trial experience, hopefully jury experience, and not use them as law clerks.”
According to participants, that program is working. (See sidebar story.)
Another idea, this one at the rule-making level currently, is replacing mandatory arbitration with a speedy trial before a six-person jury.
“I think that people thought that arbitration would substitute (for district court) in terms of experience,” says Wilson, who also is a member of the statewide committee.
But in her opinion, that hasn’t proved to be the case.
“You have to have a lot of practice with the mechanical aspects of trial,” she says, “so you can do that with a little part of your brain and use the rest of it to focus on strategy.”
On Oct. 16, 2009, Chief Justice Paul DeMuniz’s Uniform Trial Court Rules Committee adopted draft rules for what it is calling “Speedy, Economical Civil Cases.” The rules will be posted on the Oregon Judicial Department’s website for public comment and reviewed by the Chief Justice before any changes to the existing system are made.
“Hopefully the program will be seen as cost-neutral,” says Skerritt, “since the trade-off for using the six-person jury trial ‘fast track’ as an alternative to arbitration is a commitment to no motions and agreed-upon discovery. That should eliminate enough pre-trial drills that it will more than make up for any added costs.”
Judge Edward “Ed” Leavy, of the U.S. Court of Appeals for the 9th Circuit and the U.S. Foreign Intelligence Surveillance Court of Review, another member of the statewide committee, strongly supports the “fast track” concept.
“I was outspoken in opposing the abolition of district court,” says Leavy, who began his judicial career as a district court judge in Lane County. “To me it was a very, very efficient way of resolving disputes.”
But whether attorneys — some of whom are too new to even remember district court — and their clients would use such an option remains to be seen. In the Multnomah County judges’ survey, almost 40 percent of the respondents to a question concerning it said that they would not use a “fast track” or summary jury trial” option with limited discovery and motion practice, one-day trials and trial dates within six months of filing. Some respondents said they would use such an option but only under certain circumstances, such as limitations on appeal.
Meanwhile, lawyers and judges are looking at other ways to make the civil jury trial a more desirable and affordable option.
Wilson, who helps to train new judges, says that “unconsciously, judges may be nervous if they haven’t heard a civil jury trial in more than a year.”
“We want to make sure that they don’t, in some unintended way, discourage trials,” says Wilson, noting that “I know I’ve shifted the way I talk to lawyers.”
Wilson also challenges lawyers to think about their own roles in the high cost of litigation.
“I keep reading that the civil jury trial is dying because it is too expensive and takes too long,” she says. “But the use of the passive voice always troubles me. Who is doing all these expensive things? Who is keeping cases from coming to trial sooner? Have aliens taken over our civil litigation system? Has some force entirely external to the legal system and the lawyers who comprise it caused these changes?”
Finally, she pledges that she and other judges — in Multnomah County, at least — will do their part to deal with the lack of judicial familiarity with issues and unpredictable rulings that the MBA survey respondents cited as hindrances to choosing trial as a means of dispute resolution.
“We’re doing as much self-examination,” she says, “as human nature will allow.”
ABOUT THE AUTHOR
Quotations from Multnomah County Circuit Court Judge Kristena LaMar are from her 2007 Bulletin article entitled “Are Trials Passé?” and her recent conversation with the Bulletin. Quotations from Multnomah County Cirucit Court Judge Janice Wilson are from a November 2007 letter that she wrote to Willamette University College of Law, her alma mater, and her recent conversation with the Bulletin.
Janine Robben is director of the Oregon Crime Victims Law Center. She has been a long-term contributor to the Bulletin.