January Newsletter of the Civil Jury Project

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Civil Jury Project

Volume: 5 | Issue 1

January - 2020

Opening Statement

Dear Readers,

Welcome to the January edition of the Civil Jury Project’s monthly newsletter.

This issue features a piece by one of our research fellows, Michael Elias Shammas, analyzing a recent 7th Circuit decision that applied the Due Process Clause and Seventh Amendment to set the proper limit for a punitive damages award with regard to “reprehensible” misconduct by the defendant. Another piece by our judicial director, the Hon. Mark A. Drummond (ret.), supplements a prior article concerning “the demise of the civil jury trial.” Finally, a third piece by Louis W. Voelker—a board member of the Defense Counsel of Indiana—revisits an earlier piece he wrote in The Indiana Lawyer in which he asked where “all the jury trials” have gone and brainstormed ways in which this decline in trials is already harming the legal profession. In addition, this issue includes a testimonial from a former juror and a brief commentary on a recent opinion from the District of Massachusetts, in which Judge William G. Young outlined concerns with private arbitration and distinguished the roles of arbitrators and judges.

Thank you for your support of the Civil Jury Project. You can find a full and updated outline of our status of projects on our website . In addition, we welcome op-ed proposals or full article drafts for inclusion in upcoming newsletters and on our website either by email or here .

Sincerely,

Stephen D. Susman

Upcoming Events

February 19, 2020

Dinner Event by the Atlanta IP Inn of Court: "How to Help Juries Decide Patent Cases"

Atlanta, Georgia

April 1, 2020

Dinner Event by the Combined Minneapolis Inns of Court: "Jury Trial Innovations"

Minneapolis, Minnesota

April 23, 2020

Jury Improvement Lunch

Fort Lauderdale, FL

View All Events

Are Circuit Courts Right to Deny Jurors the Ability to Set Punitive Damages?

The Curious Case of Marla

By Michael Elias Shammas

2019 was a strange year. One of its strangest cases was decided only a month ago.

The case —which I will (for now) call Saccameno v. Ocwen —involves a dizzying nightmare of facts. The jury thought the ordeal merited $3,000,000 in punitive damages, but the 7th Circuit disagreed with both the jury and the district judge. In doing so, it lowered the award to produce a 1:1 ratio of punitive to compensatory damages—$582,000.

The court agreed with the defendant that the $3 million award was so high as to deny it property in violation of the Due Process Clause. Given the defendant’s quest to evict Monette E. Saccameno from her home—without anything resembling reasonable process—it is unclear that the Circuit Court should have substituted its own judgment for that of the jury and district judge.

Facts

You might want to sit down. For the facts are, as the 7th Circuit noted, “reprehensible.” Saccameno v. U.S. Bank Nat'l Ass'n , 943 F.3d 1071, 1088 (7th Cir. 2019).

Ocwen—a subprime mortgage servicer featured by the New York Times for “years of abuses” ; subjected to a 2017 CFPB enforcement action alleging “significant and systemic misconduct” for “failing borrowers at every step of the mortgage servicing process” ; and operating a system described by its own executive as a “train wreck” —put Saccameno through nine years of hell starting October 2011, when it inexplicably sent her a statement saying she owed $16,000. On June 28, 2013, this incompetence evolved after an employee named “Marla” apparently confused a bankruptcy court’s discharge order for a dismissal. As the 7th Circuit, quoted at length, writes:

Around 2009, Saccameno fell behind on her $135,0000 home mortgage and her bank … began foreclosure proceedings. To keep her home, she sought the protection of the bankruptcy court and, in December 2009, began a Chapter 13 plan under which she was required to cure her default over 42 months while maintaining her ongoing monthly mortgage payments.… Saccameno first began having problems with Ocwen in October 2011, shortly after it acquired her previous servicer. Ocwen sent her a loan statement saying, inexplicably, that she owed $16,000 immediately. With her attorney’s advice, [she] ignored the statement and continued making payments [per] her plan. Her statements continued to fluctuate: her February 2013 statement said she owed … $7,500, her March statement, $9,000. A month later, Ocwen now owed Saccameno about $1,000 in credit, and Ocwen told her she did not need to pay again until September. Still, Saccameno continued making payments through June, the last month of her plan. At that time the bankruptcy court issued a notice of final cure informing Ocwen that Saccameno had completed her payments. Ocwen never responded to the notice, and the court entered a discharge order on June 29, 2013. Saccameno’s last statement pre-discharge showed that the credit in her favor had grown to $2,800 and she was paying down her loan.

Within days … Marla reviewed the discharge but mistakenly treated it as a dismissal. As far as Ocwen was concerned, then, the bankruptcy stay had been lifted and it could immediately start collecting Saccameno’s debts. This might not have been a problem—for Saccameno of course did not have a debt anymore. but Marla’s mistake was only the tip of the iceberg…. “[I]n March, Ocwen had manually set the due date for Saccameno’s plan payments to September 2013, hence the credit. That manual setting took place in a bankruptcy module that overrode and hid Ocwen’s active foreclosure module, which instead reflected that Saccameno had not made a single valid payment in 2013, as each check was being placed into a suspense account and not being applied to the loan. Marla’s dismissal entry deactivated the bankruptcy module and reactivated the foreclosure one. If Marla had properly marked Saccameno’s bankruptcy as a discharge, then someone in Ocwen’s bankruptcy department would have reconciled the plan payments with the suspense accounts before closing both modules. Instead, on July 6 and 9, Ocwen sent Saccameno two letters saying it had not heard from her since its non-existent recent communication about her “severely delinquent mortgage.”

Id . at 1079 .

This series of unfortunate events led to several further frustrations, all compounded by Marla’s error. In the “you’ll never rent in this town again” letters sent in July 2013, Ocwen warned the plaintiff that her failure to rectify the situation could result in foreclosure and eviction. Id . Before the letters arrived, however, Saccameno had coincidentally called Ocwen to ask about lowering her interest rate and had been told by an employee (perhaps Marla) that she was ineligible because she was in default for thousands of dollars—an assertion Saccameno knew was mistaken. Consequently, two full weeks before her discharge, Saccameno asked Ocwen how to correct the records and received a fax number, which she promptly sent her documents to.

“[I]f only that were the end of this story.” Id . After performing a reconciliation using the corrected records, Ocwen’s bankruptcy department recognized Saccameno had made several 2013 payments and thus that “her default was nowhere near as large as the employee had said.” Id . Unfortunately, it then somehow calculated that Saccameno flubbed two payments during her bankruptcy and remained in default, and the foreclosure module stayed open. Id . “In August, Ocwen sent Saccameno a letter declaring that it had ‘waived’ $1,600 in [discharged] fees … and that it was missing two of her plan payments (which, even if true, would also have been discharged under the terms of the plan).” Id . Even though Ocwen assigned Marla a “relationship manager” to rectify these supposed issues, this manager, Anthony Gomes, proved unfamiliar with her case. Id . After re-sending Gomes her documents and never hearing back, Saccameno “frequently” called Ocwen’s customer service line and “each time was directed to a new, similarly unhelpful person.” Id .

After Ocwen started rejecting Saccameno’s payments in September due to her supposed default and after several more months of rejection, during which her fictional default grew and her underlying foreclosure action remained pending (albeit stayed due to bankruptcy), Saccameno asked a lawyer friend for help. This friend incurred the misfortune of interacting with Ocwen several times, but she herself soon grew frustrated. Eventually Ocwen’s incompetence forced Saccameno to hire legal counsel.

As all of this was going on, Ocwen internally prepared to revive the foreclosure action and seek judgment of foreclosure. It sent experts to appraise Saccameno’s property and spied on Saccameno monthly through use of agents to see if Saccameno was still living in the home (if they concluded she wasn’t, “they would have placed locks on the doors”). Id . at 1080. Ocwen added these measures’ cost to Saccameno’s ballooning debt and “produced affidavits to support a request for judgment of foreclosure, including one prepared as early as July 2013,” which it “gave … to its local law firm. That firm filed an appearance in the foreclosure proceeding in 2014 and told Ocwen, in January 2015, that it needed only one more document before it could move for judgment).” Id .

The 7th Circuit’s Analysis

Though the 7th Circuit found the facts “reprehensible,” they apparently were not so reprehensible as to necessitate $3,000,000. This is despite the fact that reprehensibility is “the first and most important guidepost” in the applicable three-step test. Id . at 1086. As the court noted, at least five factors must be weighed when considering reprehensibility:

[W]e judge [reprehensibility] based on five factors including whether [1] the harm caused was physical as opposed to economic; [2] the tortious conduct evinced an indifference to or reckless disregard of the health or safety of others; [3] the target of the conduct had financial vulnerability; [4] the conduct involved repeated actions or was an isolated incident; and [5] the harm was the result of intentional malice, trickery, or deceit, or mere accident.

Id . (internal citations omitted).

The 7th Circuit agreed with the district judge that Ocwen’s conduct was reprehensible but disagreed with Saccameno that all five factors applied. The court found all factors applicable except the first two, rejecting the argument that the mental illness Saccameno developed had anything to do with the first two factors.

Legally, the 7th Circuit is right. As far as the common law is concerned, mental illness is neither a “physical harm” (thereby satisfying the first prong) nor a “health or safety” issue (satisfying the second prong). See, e. g ., Sanders v. Melvin , 873 F.3d 957, 959 (7th Cir. 2017) (“Mental deterioration, however, is a psychological rather than a physical problem.”). Given what we’ve learned about mental illness, this legally correct result seems far from scientifically correct . Several peer-reviewed studies have found trauma, anxiety, and depression (which afflicted the plaintiff due to her nine long years of economic and legal uncertainties, Saccameno , 943 F.3d at 186) can wreak havoc on everything from the immune system to skin health.

One law review article even went so far as to assert that “[t]here is no scientific basis to distinguish biologic and non-biologic mental disorders.” Joni Roach, Discrimination and Mental Illness: Codified in Federal Law and Continued by Agency Interpretation , 2016 Mich. St. L. Rev. 269, 310 (2016) (emphasis added); see also Stacey A. Tovino, Reforming State Mental Health Parity Law , 11 Hous. J. Health L. & Pol'y, 455, 499 (2011) (explaining that “[c]urrent science shows that almost all mental health conditions and substance use disorders have been reported by scientists to have some type of basis in neurobiology”).

Leaving science aside, the 7th Circuit’s analysis was correct as a matter of law. Where its analysis strayed was with regard to the latter two prongs, “ratio” (“the disparity between the harm to the plaintiff and the punitive damages awarded,” Saccameno , 943 F.3d at 1088) and “civil penalties” (“the disparity between the award and civil penalties authorized or imposed in comparable cases,” id . at 1091 (internal citations and quotations omitted)).

Ratio

As the 7th Circuit saw it, Ocwen’s most persuasive argument concerned ratio, the second prong. The district judge, Ocwen said, made its due-process-denying decision to uphold the jury’s punitive damages award “by looking to the entire compensatory award instead of just the $82,000 awarded under the” Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). Id . at 1078. That is, the district court looked at the award resulting from all four claims, instead of the award resulting from just the ICFA (permitting punitive damages). The 7th Circuit agreed with Ocwen, “not because the district court was obligated to use a certain denominator but because the choice between available denominators—and their resulting ratios—reflecting the same underlying conduct and harm should not unduly influence whether a given award is constitutional.” Id . at 1088.

The district court had calculated its ratio by adding the compensatory damages awarded on all counts, yielding a 5:1 ratio that the judge approved because the ratio met Supreme Court guidance suggesting that single-digit ratios can be appropriate (as opposed to multi-digit ones). Id . at 1086 (citing State Farm Mut. Auto. Ins. Co. v. Campbell , 538 U.S. 408, 425 (2003)). The Supreme Court has issued three guidelines concerning the ratio prong: (1) “[F]ew awards exceeding a single digit ratio ‘to a significant degree’ will satisfy due process,” id . (internal citation omitted); (2) “the ratio is flexible” in that “[h]igher ratios may be appropriate when there are only small damages” and vice versa, id . (internal citation omitted); and (3) “the ratio should not be confined to actual harm, but also can consider potential harm,” id . at 1088 (citing TXO Prod. Corp. v. All. Res. Corp ., 509 U.S. 443, 460-61 (1993)). The 7th Circuit noted that several federal courts of appeal have instead “implied or held that courts should calculate punitive damages ratios claim-by-claim,” and that, whatever the case, even though “[t]he disparity guidepost is not a mechanical rule,” as “[t]he court must calculate the ratio to frame its analysis, but the ratio itself does not decide whether the award is permissible,” the 37:1 ratio that would result without aggregation—which the district judge held might still be constitutional—was simply too high on these facts. Id . at 1089.

According to the 7th Circuit, the cases the district court cited involving such ratios were more reprehensible; thus, the district court should have hesitated just as much in the face of a 5:1 ratio as it did in the face of a 37:1 ratio because the $582,000 compensatory award is “substantial” under Supreme Court precedent. Id . at 1090-91. Ultimately, the 7th Circuit held that this substantial award meant that a 1:1 ratio involving all compensatory damages (here $582,000) was appropriate. Thus, despite its analysis of the third prong (mandating that courts look at comparable civil penalties), the 7th Circuit’s decision seems to have been guided mostly by its ratio analysis, and its conclusion that a 1:1 ratio was appropriate because the misconduct (in its opinion) was not so reprehensible as to deviate from that ratio and because the compensatory damages were “substantial” meant that the punitive damages award would have to be reduced to $582,000 to satisfy due process.

Conclusion

The 7th Circuit might have got it wrong.

First, its analysis of the facts—wherein it painted Ocwen’s misconduct in terrifying terms—describes conduct that seems at least as reprehensible as case law involving ratios above 1:1. Although Ocwen’s misconduct was not (one assumes) intentional, intentionality is not required when measuring reprehensibility, especially when the defendant is a repeat offender such that an inference of intentionality arises. See, e.g ., Action Marine, Inc. v. Cont'l Carbon Inc ., 481 F.3d 1302, 1321 (11th Cir. 2007) (upholding a 5:1 ratio of compensatory to punitive damages despite “substantial” compensatory damages).

Second and more importantly, it is unclear that the 7th Circuit should have undertaken such a fact-intensive analysis. True, the second and third prongs—the ratio and civil penalties analyses—concern legal questions. But those prongs also involve an implicit weighing of the first prong’s chief factual concern—reprehensibility. Both the district judge and the jury were better equipped to analyze Ocwen’s reprehensibility than the 7th Circuit. Even if one buys that nine years of hell yielding severe mental illness is not reprehensible enough to implicate physical health or to demonstrate a reckless disregard to the health or safety of another, the other three factors were more than enough to justify an award of $3,000,000, see Campbell , 538 US. at 425. Indeed, the 7th Circuit’s attempt to distinguish other civil cases with equally high awards seems bizarre given its lurid description of Ocwen’s “reprehensible” misconduct.

Ultimately, my main issue with Saccameno involves a segment where the Seventh Circuit is unfortunately in accord with its sister circuits and the Supreme Court. In relation to the final disputed issue—whether the Seventh Amendment mandates an offer of a new trial after determining the constitutional limit on the punitive damages award—the 7th Circuit curtly noted that it would follow existing federal law, which holds that “the constitutional limit of a punitive damage award is a question of law not within the province of the jury, and thus a court is empowered to decide the maximum permissible amount without offering a new trial.” Id . at 1092 (internal citations omitted); see also Cooper Indus. v. Leatherman Tool Grp ., 532 U.S. 424, 437 (2001) (“[T]he [amount] of punitive damages is not really a ‘fact’ ‘tried’ by the jury.”).

Ultimately, punitive damages serve a different function than compensatory damages. They “are retributive in nature and seek to deter wrongful acts in the first place.” Id . at 1086 (internal citations omitted). While the Saccameno court decided that this public-minded purpose means the reward must be carefully scrutinized in order to protect defendants from unjust punishment, it seems equally probable that this public-policy-minded purpose should result in a more liberal standard of judicial review than that regarding compensatory damages. After all, public policy questions by nature implicate the public interest—not just the defendant’s private property interest—and juries are the closest thing to a democratic institution we have in our justice system (and perhaps in our political system). See Tim M. Stubson, Why the Legislature Needs Lawyers , Wyo. Law., August 2017, at 22 (discussing Toqueville’s view of lawyers’ and jurors’ special roles in a democracy). Should judicial elites really be able to substitute their judgment for that of a jury? If so, does this mean we mistrust jurors to decide just how egregious a defendant’s misconduct is?

Ultimately, Ocwen received substantially more process than it incompetently afforded Saccameno, who is left with permanent mental scars as a result of her nine-year ordeal. Given the utter lack of process Ocwen afforded Saccameno—at least per the 7th Circuit’s detailed retelling—one cannot help but find the result less than ideal.

As it stands, the punitive damages award is “a miniscule amount compared to the value of Ocwen’s business license.” Saccameno , 943 F.3d at 1092. As demonstrated by ongoing public enforcement actions against Ocwen for widespread systemic failures, Ocwen has repeatedly acted in a manner causing great public harm. By substituting its judgment for that of the jury and district judge, the 7th Circuit gave Ocwen an ineffectual slap on the hand—one much too benign to fulfill either the retributive or deterrent functions that should guide any constitutional analysis of punitive damages.

***

Interested readers with Westlaw access can find the entire opinion at this link .

Michael Elias Shammas is a research fellow at the Civil Jury Project. After graduating from Harvard Law School, he worked as a litigator for two years at Paul, Weiss, Rifkind, Wharton & Garrison LLP then clerked in the District of Maine for the Honorable D. Brock Hornby. He will begin a clerkship with the Honorable Ronald L. Gilman at the United States Court of Appeals for the Sixth Circuit in fall 2020. You can read some of his research here .

The Demise of the Civil Jury Trial: Part II

By Hon. Mark A. Drummond, Judicial Director

In our November newsletter I wrote about a medical malpractice case involving the death of a little boy. The jury returned a verdict of $10,000,000 in favor of the parents and his two siblings. The appellate majority of three, after ordering the parties to brief settlement negotiations and after “substantial collegial discussion,” decided to reduce the award to $3,000,000. The parents were also given the option of a new trial. One factor in the decline of jury trials may be judicial tinkering with hard fought jury verdicts.

The majority opinion referenced Averroes’ Commentaries on Aristotle , the spire atop the Great Cathedral in Salisbury, England, Hamlet, and a footnote to Scientific American magazine. Two justices dissented—this column addresses those dissents.

Let’s begin with the spire. The majority noted that the spire is “…exactly 3.2 feet off dead center in the direction of the southwest prevailing winds.” This adjustment has allowed the spire to survive for hundreds of years. The majority then wrote “Greatness in architecture is not achieved by creating a good structure from superb materials; it is achieved by creating a superb structure from mediocre materials. ”

The majority applied this analogy to the “imperfect” judicial system, referencing the “unbridled discretion” of a jury on one end of the scale versus plaintiffs having to put up with “…outrageous expense, incalculable inconvenience, and inordinate delay.” What is most curious about the last part of this balancing is that the majority also stated that without years of pretrial motions and discovery, “…defense law firms cannot build a file to justify fees, and large fees are necessary to sustain the overhead of large firms.”

The majority then stated, “Without the occasional jury award that is at least ten times greater than what the parties would have settled for immediately after the tragedy, there would be no incentive on the part of clients to temper the file building, anti-settlement proclivities of their lawyers by urging quick payment of just claims.”

One wonders whether any party to this suit knew that the appeal would involve an analysis of what it takes to sustain the overhead of large firms juxtaposed against the effect of large jury verdicts. In a footnote, the majority stated that $300,000 would have been an appropriate settlement amount if paid within 60 days of the child’s death. Evidently, neither of the lawyers who was actually handling the case agreed with this footnote since the last settlement demand was $5,000,000 and the last offer, after years of litigation, was $220,000.

The majority’s analogy then comes full circle, with, “The similarities between the legal system and Salisbury, then, become apparent: Judges understand the imperfections in the materials with which they must work and attempt to achieve some structural balance by offsetting one imperfection against another.” The majority stated that tort law should not be a “…Las Vegas game of chance…[or] a lottery where everyone pays high insurance premiums so that enormous windfalls can be allocated randomly.”

It is this type of judicial second-guessing that undermines the sanctity of a jury verdict. The only safe jury verdict is the not-guilty verdict in criminal cases. When it comes to establishing an amount for loss of society how are we, as single judges, any more qualified than 12 jurors comprised of mothers, fathers, sons, daughters, sisters and brothers? So, what say the dissenters?

“The Great Cathedral in Salisbury, England…is not as far ‘off dead center’ as the legal architecture of the majority opinion on the issue of … remittitur in a case involving indeterminate damages,” begins the first dissent. The justice then explored a long line of precedents establishing that the fixing of damages, especially for loss of society, is exclusively a jury function to be tinkered with only if it is a clearly excessive amount fueled by passion or prejudice. The justice then cited the constitutional underpinnings of the right to a trial by jury in a civil case. The first dissenter stated that no amount of money could compensate for “…the inconsolable grief…” and further noted that the award would be divided among the four remaining family members.

The second dissenting justice dove deeper into the numbers and into the majority’s analysis of the economics of litigation. The jury’s verdict was $10,000,000. The available insurance coverage was $10,250,000. Amazing isn’t it?

The second dissenter noted that the insurance companies had set the limit of $10,250,000 as the maximum amount, “…for the most harmful acts of malpractice anticipated by the insurance companies.” The jury then, without knowing the policy limits, returned a verdict remarkably close to those limits.

In the book The Wisdom of Crowds , the author tells the story of the recovery of U.S. submarine Scorpion . Simply stated, the premise of the book is that a group is smarter than any one individual in that group. The Scorpion sank on its way back to port, but no one knew why the submarine sank, how fast it was traveling, or its rate of descent. The area where it could have sunk was 20 square miles and thousands of feet deep.

The naval officer in charge came up with a novel plan. He assembled teams from different professions including mathematicians, submarine specialists, and salvage operators. He had them work independently and then put each of their location estimates into a theorem. None of the individual estimates was close to where the sub was found, but their collective estimates were within 220 yards of the submarine. Isn’t this what juries do every day?

The second dissenter then took direct aim at the majority’s Salisbury Cathedral analogy, “Thus, according to the majority, jurors are ‘mediocre materials,’ who operate not on reason, but ‘on largely emotive principles,’ particularly in comparison to judges, who are ‘educated in law as a science.’ Never has a more arrogant statement been uttered by this Court in support of blatant judicial fiat. ”

The justice concluded by reaching back to the early 1900’s to G.K. Chesterton. All citizens of the town of Battersea with last names beginning with “C” were summoned, and Chesterton was among them. Chesterton recounted snippets of the cases he sat on, with one being a woman accused of neglecting her children. He noted that it appeared that someone had also neglected her. He wrote, “Never had I stood so close to pain; and never so far away from pessimism.”

The justice ends with this lengthy quote from Chesterton, which is one of the most eloquent statements on the sanctity of the collective wisdom of a jury verdict, "Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. It wishes for light upon that awful matter, it asks men who know no more law than I know, but who can feel the things that I felt in the jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember right, by the Founder of Christianity."

References

Roberts v. Stevens Clinic Hosp ., 176 W. Va. 492, 345 S.E.2d 791, 1986 W. Va. LEXIS 496.

James Surowiecki, The Wisdom of Crowds , Anchor Books, 2005.

Gilbert K. Chesterton, Tremendous Trifles: The Twelve Men , 1922.

***

This piece is published with permission.A version of this article will appear in Litigation News Vol. 45, No. 2.

The Hon. Mark A. Drummond (ret.) is the Judicial Director of the Civil Jury Project. He was a trial lawyer for 20 years before serving on the bench for 20 years as a trial court judge.

Jury Project

Arbitration Without Illusions

By Michael Elias Shammas

A recent decision from the District of Massachusetts ( UBS Fin. Servs. Inc. v. Asociacion de Empleados del Estado Libre Asociado de Puerto Rico , 2019 WL 7000027 (D. Mass. Dec. 20, 2019)) included some interesting language on arbitration.

In a section titled "Arbitration Without Illusions" (inspired by District of Maine Judge D. Brock Hornby's essay, "Summary Judgment Without Illusions") Judge William G. Young outlines some issues with arbitration:

"Arbitration is to justice as a metronome is to Stradivarius. But what of it? So long as it is quick, easy, and private, big business will go for it, especially since, when deployed against a lone consumer, it effectively bars the little guy from the courts of justice and the constitutional guarantee of a jury of his peers."

Id ., at *16.

The opinion is well worth reading in its entirety . But part of the opinion that is especially worth highlighting concerns Judge Young's view of the role of judges and the civil jury in contrast to that of arbitrators. Judge Young ties the value of judges in our constitutional scheme to the right to trial by jury:

"[J]udges are the guardians of humanity's most audacious attempt to achieve true justice — the American jury trial: the purest, fairest, most inclusive and robust expression of direct democracy the world has ever seen."

Id ., at *17.

He then goes on to posit why — despite the benefits of the jury trial — so many judges and defendants, especially businesses, opt for arbitration:

"The trouble is [that] in our constant attempts to make the run up to trial ever more just, we've rendered the whole process so ponderous and expensive in federal court that only the elite can ever get to trial. Face it, we've priced ourselves out of the market. "

Id ., at *18.

Judge Young notes that — while he respects arbitrators — arbitrators are not judges. He cautions that we make a mistake to the extent that we believe the two are interchangeable:

"Arbitrators are interested in justice too; they certainly try to be fair. But arbitrators are not judges; they are not even like judges and it is a fallacy to think that they are. They have neither tenure nor job security. They are people paid by the parties. Most are part time, drawn from many learned professions (and the continuing incessant demands of those professions). Their awards, especially in the context of securities arbitration awards — rarely supported by reasoned decisions — add nothing to the development of the law in the traditional sense."

Id .

Perhaps the most interesting part of Judge Young's opinion is his take on arbitrators' potential biases:

"[T]he bias of arbitrators in favor of repeat players like banks who may hire them again is well-documented."

Id .

Finally, in footnote 10, Judge Young writes discusses one of the greatest threats to a transparent system of justice — forced arbitration:

"Of course, this is what makes forced or mandatory arbitration so unconscionable; millions are forced into it without understanding that it effectively bars them from the courts their taxes are supporting and juries of their fellow citizens."

Id .

Where Have All the Jury Trials Gone, Revisited

By Louis W. Voelker

Recently, Robert Dignam, a Lake County trial attorney and mediator, awakened me during his CLE presentation (just kidding, Bob!) by referencing my December 2015 article on the declining number of civil jury trials in Indiana. And so was born the idea to revisit those statistics and their implications. Let me first briefly recap the original article.

Historically, the right to trial by jury of civil claims was sufficiently important to the Founders that it is ensconced in the Seventh Amendment to the United States Constitution. Likewise, the drafters of our state Constitution provided unequivocally in Article I, Section 20 of the Indiana Constitution: “In all civil cases, the right of trial by jury shall remain inviolate.” Although a large percentage of attorneys would likely cite the right to trial by jury as a critical element of the judicial systems of our state and our nation, the implementation of that right is beginning to appear more conceptual than tangible.

In 2015, I reviewed statistics on civil cases from the Indiana Supreme Court 2014 Indiana Judicial Service Report, Vol I: Judicial Year in Review, comparing data from 2005 with that of 2014. In 2014, there were 11,417 new civil tort cases filed, a 16% decrease compared to 2005’s 13,588 filings. By comparison, only 209 tort cases were concluded by jury trial in 2014, down more than 50% from the 486 claims tried to jury in 2005.

So, where are the numbers now? The most recent statistics available can be found in the 2017 report . That report shows that new tort filings in 2017 numbered 11,879 — up about 4% from 2014. Yet despite essentially flat numbers for new filings, the number of civil tort cases disposed of by jury trial has continued to fall. In 2017 there were only 165 trials, a decrease of 20% in merely three years.

I continue to find this concerning, and I think even the strongest advocates of mediation should, too. The decline is no doubt due in part to the success of mediation — or at least its ubiquity. But might it not ultimately affect the mediation process as well? One motivator mediators employ to encourage settlement is that mediation allows the parties to maintain control over the outcome, rather than leaving it to a jury. We lawyers warn our clients that you cannot know what any given jury will do, but an experienced trial attorney will also tell you that juries usually “get it right.” As a result, a common benchmark against which parties gauge their decision-making is a comparison of jury results in similar cases based either on hard data or anecdotal evidence. I continue to believe that trials help lawyers on both sides of the bar know what our communities consider to be reasonable or unreasonable conduct. Trials also produce the statistics from which we try to extrapolate the value of cases we seek to settle. Without them, no longer will either the reasonableness of the conduct or the appropriate measure of damages be grounded in any input of the general public.

That fewer trials means fewer citizens having direct input into our justice system not only affects mediation – it affects communities. As I suspect our judges would agree, most jury members with whom I have spoken were glad they had served and left the experience with a greater appreciation of our system. They no doubt share their impressions with others, which in its own way helps maintain faith in our system. This impact must be declining, and that loss, too, is unfortunate.

Trials are the training ground in which this generation of lead trial lawyers prepares the next. My concern was and is that the ability to effectively exercise the right to trial will someday (maybe soon) be limited because there will be no one left with experience doing the work. Not only will the next generation of lawyers lack the experience, but so will our judges. As I noted in 2015, the declining number of trials also means that the more than 450 superior and circuit court judges in our 92 counties have little opportunity themselves to oversee trials.

My position is obvious, but perhaps you view the occurrence of even a single trial as representing a failure of the system. If so, there are some questions to ponder. Do we think it better that the value of cases be ultimately determined largely by what other lawyers and mediators are able to convince their respective clients similar cases are worth? By paid focus groups? By computer algorithms? Beyond suspecting a continued decline in the next few years, I don’t know what to expect. But I will certainly be watching.

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Louis Voelker is a partner in Eichhorn & Eichhorn, based primarily in Hammond, and serves on the board of directors of the Defense Trial Counsel of Indiana. This article originally appeared in The Indiana Lawyer and is republished with permission.

A Testimonial From a Recently Discharged Juror

Mark Kearney was the judge and he treated the jury with tremendous respect. He talked to us in plain language without talking down to us. He began the trial talking about the relevance of jury trials in the American judicial system and [noted] that we were serving in a courthouse across the street from where the Constitution and Federal Judiciary Act of 1789 were signed. He ended the trial saying that we spoke for the United States and that the United States thanks us. After the trial concluded, he came into our jury room with his clerks and answered any questions we had about any part of the jury selection or the trial. Judge Kearney made the experience very worthwhile.

Cynthia Addenbrook

Philadelphia, PA

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For more testimonials, including video interviews, click here .

Look out for the February Newsletter!

Tune in next month for more articles by our judicial and academic advisors and testimonials from jurors who have recently finished serving on a civil jury.