Written by Joy C. Rosenquist, Esq.
Jury trials are at the very foundation of American democracy. However, for every 100 cases that are filed in court, statistics say that only about 5 of them will ever make it to a jury trial. Why is this? There are a few reasons for the decline in trials, and it affects you as a client of the firm, or if you are making a decision whether to pursue a case in court.
In California, jury trials were much more popular before 1975. Up until that time, if the Defendant being sued for personal injury can prove that the Plaintiff was also at fault, even 1% at fault, then the Defendant will not be held liable at all, even if he caused the Plaintiff’s injuries. So why not take a case to trial? All you have to do is prove the Plaintiff is slightly at fault in order to wipe out all of your liability. Cases went to trial all the time – until a seminal California case was decided in 1975 (Li v. Yellow Cab) which basically changed the proof system, and wiped out the “all or nothing” results. Now, you compare the fault of all parties involved. If the Plaintiff is 1% at fault, that is 1% less in money damages that they recover. And, if the Defendant wants to bring in a third party who is also at fault, they can now apportion away some of their liability onto that third party. California is only one of 13 states that follow this pure version of comparative fault. Most of the other states follow a 50% rule, in which a Plaintiff will not recover anything if they are found to have been more than 50% responsible.
Why the change from “all or nothing” to comparing all parties fault? California courts had adopted contributory negligence (the “all or nothing” approach) into the law as part of the general civil code in the nineteenth century. When the original code was adopted, some scholars say that it was with the knowledge that the common law is “elastic,” and principles would continue to evolve in judicial decisions and was therefore never meant to be permanent. Others say that on a practical level, jurors, are uncomfortable with the outcome of contributory negligence, which was severe, resulting in juries tinkering with their verdicts and assessment of damages in order to arrive at a more fair result. A series of three landmark California cases discussed all of these factors and ultimately resulted in an overwhelming shift in the late 1970s, completely away from the “all or nothing” approach. These cases basically adopted a new system that divides liability and damages up much like your thanksgiving pie. Everyone gets a different sized slice, depending on the success of your arguments. As a result of this new system, less cases are going to trial because the risk/reward factor has completely changed. Gone are the days of wiping out your liability if you can convince a jury that the Plaintiff itself was also 1% at fault.
But this isn’t the only reason cases aren’t going to trial. Judges are overwhelmed by their docket which has grown exponentially over the years, without adding new Judges (costs too much money, budget issues and all). The result? The explosion of forced mediation in virtually every court I have walked into. You cannot proceed to trial any longer without the court forcing the parties to go through a mandatory mediation first. This isn’t too bad, unless you have an aggressive judge or commissioner pushing the settlement of your case. If the case doesn’t settle, sometimes you have to go before the same judge with your trial, which is awkward to say the least and usually prejudicial to the Plaintiff, who refuses to settle. More often than not, the way Judges and some attorneys convince parties to settle is to instill a fear factor of the jury. “Who knows what a jury is going to do”…”You never know who you’re going to get on your jury.” Isn’t that the point of a jury? That it’s a random snapshot of our community? Why is the jury system being used as a deterrent? All in all, when you look at the statistics, it is clear that this forced court ordered mediation is working. In the late 1960s, approximately 11% of federal civil filings wound up in a jury trial. In 2009, that number dipped all the way down to 1.2%. If the court cannot hire additional judges to reduce the court’s docket, the only other way to solve the problem is to get cases to mediate or worse, resolve them by the abused summary judgment procedure (next month’s article).
One of the most important and telling factors contributing to the decline in jury trials is the expense of a trial, coupled with the over-litigation of a case. Once upon a time, a lawyer may charge $300 an hour to litigate fairly routine matters from when the case is first filed, up through trial. This kind of billing is no longer economically feasible in today’s economy for the client. Therefore, less cases go to trial. It’s just not affordable. The same amount of cases appear to be filed, however the rate of early resolution before trial has increased, due to the expense of actually going through the rigor of litigation and trial. Second, we are seeing a lot of defense attorneys, who can charge their corporate or governmental clients a high hourly rate, over-litigate cases. This is a deadly combination for any plaintiff. A flurry of discovery, and an over abundance of law and motion procedures are being abused, which drives up the cost to a Plaintiff, trying to prosecute his case. This is no accident; one of the best means of resolving a case for the defense is to force the Plaintiff to burn through money, to the point that he cries mercy. The courts are unable to help; after all, the Defendant has a ‘right’ to these procedures and the courts’, even when faced with these abusive tactics, refuse to sanction these attorneys. These combinations of factors are the death knell for any chance of going to trial.
Is the declining rate of cases going to trial good or bad? Well, if you’ve been served a summons to appear for jury duty, you may be thinking this is a good thing. But, if you’re part of the judicial system and you take the purpose of a trial seriously, it is troubling to see cases get steered away from trial. I can only hope that the good sense that jurors bring to the table is not a deterrent for parties going through with a trial. If so, the parties should be ashamed of being in court in the first place, if they’re intimidated by the common sense of a jury.
Written by Joy C. Rosenquist, Esq.