Civil Jury Project
Volume: 4 | Issue 11
November - 2019
Opening Statement
Dear Readers,

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

This issue features an article on whether we should care about the demise of the civil jury by our Judicial Director, the Hon. Mark Drummond (ret.). Another piece by Illinois Circuit Judge Clare E. McWilliams describes high-low agreements, which she says have become "accepted practice at the trial level." And, in a short story imagining a discussion between former law school classmates, the Hon. D. Brock Hornby delineates how the decline of the civil jury is viewed differently by judges, mediators, corporate counsel, defense attorneys, plaintiff's lawyers, law professors, and so on. Finally, the newsletter includes a detailed testimonial from a former juror about her experiences serving on a civil jury; she also describes serving as a panelist at our recent Jury Improvement Lunch in Houston.

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 .

Stephen D. Susman
Upcoming Events
November 6th, 2019
Jury Improvement Lunch
El Paso, TX

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
The Demise of the Jury Trial: Should We Care?
By the Hon. Mark A. Drummond (Ret.), Judicial Director of the Civil Jury Project
Dear Reader,

I was honored when Steve Susman called to ask if I would become the Judicial Director of the Civil Jury Project. Below is my article to the readers of Litigation News announcing my new position. It is my hope that I can assist in preserving the right to a jury trial in civil cases. No other country puts this much faith in its own citizens to decide issues of such importance.


Back in 1996, I was a trial lawyer and I began writing for this publication. I went on the bench in 1999 and for the past 20 years I have brought you stories from the bench. By the time this column posts, I will have come full circle and hope to join you on the other side of the bench as a trial lawyer once again. When not in court, I will be working as a co-director for the Civil Jury Project at NYU School of Law. 

“[The Project] studies why jury trials are disappearing, asks whether we should care and suggests things that could be done to reverse the trend,” says Project Executive Director, Stephen D. Susman, a longtime ABA Section of Litigation member and legendary trial attorney (emphasis added). This column addresses whether we should care.

In my last column, I wrote that jury verdicts drive all litigation decisions. With no jury verdicts we lose the benchmarks that each trial attorney must look to in determining exposure, settlement, or alternate dispute resolution. Without clients willing to go to trial and attorneys willing to take cases to trial we would have absolutely no benchmarks.

The most colorful dissent I have ever read was by the legendary dissenter, Justice Musmanno, in a Tropic of Cancer obscenity case. For a chuckle, take five minutes and read it. A close second, with much less railing and much more thought, is the case of Roberts v. Stevens Clinic Hospital . The opinion swings from citing Averroes’ commentaries on Aristotle to the spire on the Great Cathedral in Salisbury, England back to Hamlet. It is also the perfect case to frame up why we should care about the demise of civil jury trials.

In Roberts , a couple had two children from the wife’s previous relationship. The couple wanted to have a child of their own and a baby boy was born. After that, the wife had a hysterectomy. The majority described the little boy as, “…the darling of the whole family.”

The parents took the little boy to the defendant doctor after an episode of rectal bleeding. The doctor suggested a sigmoidoscopy. He told the parents it was a simple procedure that might detect a polyp which could be snipped off and may not even require a stitch.

Without advising the parents, the doctor also performed a biopsy and in doing so perforated the boy’s colon. The boy died of peritonitis. The court described the negligence of the defendants as “palpable” and “clear-cut.”

After a two-week trial the jury returned a verdict of $10,000,000. An appeal followed and the majority reduced the award to $3,000,000. In cutting the award the majority delved into issues of jury deliberation, trial strategy, settlement negotiations, and the economics of litigation. The scope of topics addressed is simply breathtaking.

The court first asked counsel to outline the settlement talks that preceded trial! The court noted that settlement discussions are generally inadmissible, but went on to state, “… we believe that settlement discussions have some bearing on the necessarily subjective criteria that appellate courts use to determine a proper remittitur, because such a determination affects future settlement negotiations .” (Emphasis added.)

Counsel also disclosed that insurance coverage was $10,250,000. Two months before trial the plaintiff offered to settle with both defendants for $5,000,000. The defendants’ first settlement offer of $100,000 was on Friday before the Monday trial. On Saturday, the offer was increased to $125,000, and after one week of trial went up to $220,000.

The majority first noted that many errors claimed by the defendants were waived due to no timely objection. The majority speculated that no objections were made due to defense counsel’s calculation that a local jury would not award large damages against a local practicing physician and the community’s only full-service hospital.

The majority stated, “[t]heir trial strategy … was reasonable, and although defense counsel’s failure to object makes it easy for us to write this opinion without its assuming the dimensions of Averroes’ Commentaries on Aristotle , we can say…that the result … would not be otherwise had objections been made with the regularity of a pendulum.”

 The majority then turned to the claim that the trial court erred by not recalling the jury to inquire about a rumored, initial vote to award $250,000,000. The court found that, even if $250,000,000 was discussed, it was irrelevant since the verdict was $10,000,000. However, the court footnoted that any discussion of $250,000,000 probably implied “innumeracy,” which is the equivalent of numerical illiteracy. The court cited Scientific American magazine on this issue.

The court stated that “in a nutshell” the reason they were reducing the award was that plaintiff’s counsel had implied that the jury was to place a value on the boy’s life. Ironically, under the statute, awards were allowed for “sorrow, mental anguish, and solace which may include society, companionship, comfort…” One might ask aren’t these just different words to describe the “value” of a beloved child to his family?  

The defense made no objection to the “value” argument at trial but the majority stated, “[i]n the roughly seven seconds available to counsel to make the strategic decision whether to object, it probably dawned on counsel that an objection and ‘curative’ instruction would serve only to reinforce plaintiff’s counsel’s point.”

However, the court said that to send the plaintiff back to square one because of an excessive verdict would be unfair. The court asked rhetorically what would be the highest jury award that would pass muster and concluded, “[o]ur answer, after substantial collegial discussion, is $3,000,000 and that is the amount that we will allow to stand.” (Emphasis added.) However, the majority also gave the plaintiff the option of a new trial. The court stated that its decision was “… grounded in sound public policy, which we will now proceed to discuss.”

 The court noted 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 court then stated, “[w]ithout 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.”

 The doctor’s counsel said during oral argument that $300,000 would have been the outer limit of an appropriate jury award. The court then footnoted that “[c]ertainly [$300,000] would have been an appropriate settlement figure if offered within sixty days of Michael’s tragic death.” Seriously?

So, what have trial attorneys learned from this case going to trial as opposed to mediation? They have learned that a local jury will return a large verdict against a local doctor and hospital. They have learned that the jury verdict is ironically close to the policy limits for the insurance that the doctor and hospital paid for over the years.

What else has been learned will have to wait until my next column, which will reveal how the spire of the Great Cathedral in Salisbury, England could possibly have any connection to a West Virginia wrongful death case.       



Commonwealth v. Robin , 421 Pa. 70, 218 A.2d 546 (1966).

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

This piece was republished with permission. It previously appeared in Litigation News (Vol. 45, No. 1, Fall 2019, at page 28).
Hon. Mark A. Drummond (Ret.)

Former Circuit Judge, 8th Judicial Circuit, Illinois; Judicial Director of the Civil Jury Project
An Imagined Conversation: The Decline in Federal Civil Trials
By the Hon. D. Brock Hornby, Judicial Advisor for the Civil Jury Project

Imagined conversations about federal courts among friends who once were law school classmates and now are well along in their legal careers


Lang Fell, a federal courts law professor
Coar Dappel, a federal circuit judge
Nielsen Prius, a federal district judge
Madge Strait, a federal magistrate judge
Talagud Storey, a federal trial lawyer
Linda Gate, a federal practitioner
Ward Smith, a transactional lawyer
Manny G. Risk, a corporate general counsel



Welcome, fellow classmates. Sorry I’m late. I had to take a last-minute guilty plea so that a criminal jury panel need not come to the courthouse tomorrow. I bring the apologies of Chip Terleven who has convened an emergency bankruptcy hearing. I hope you are as enthusiastic about this meeting as I am. We are old friends — transformed over the years into lawyers, law professor, federal trial and appellate judges — who can benefit by discussing and critiquing what we do. Maybe collectively we’ll acquire some new insights. The rules for our conversations are simple: no holds barred, no offense taken, just a candid discussion of professional practices and assumptions. I’ve asked our classmate, Lang Fell, now a federal courts law professor, to get the ball rolling on our first topic, the drastic decline in the number of civil trials in federal courts.


Thanks, Nielsen. Talagud, years ago you used to try a lot of civil cases in federal court, but now you say you have few federal trials. Why the change?


Lang, I love to try cases — it’s why I became a lawyer. I love the process and the adrenaline rush that accompanies it. But these days I have very few federal civil trials. The reasons are seated around this conference table, from company general counsel like Manny, to federal lawyers like Linda who focus on discovery and motion practice in preference to trials, to magistrate judges and trial judges like Madge and Nielsen who raise obstacles to civil trials, to appellate judges like Coar who make the law complex. I’d like to hear what they say about why they discourage civil trials before I chime in.


All right, Talagud, I’ll come back to you. Let’s start with the judges instead. Nielsen, from your perspective as a seasoned trial judge, why has the number of federal civil trials declined so precipitously?


As Talagud intimates, we judges are partly responsible, but only partly. When federal courts were overwhelmed by trials in the ‘80s and ‘90s, many judges strong-armed settlement and, with help from the Civil Rules Committee amending the Federal Rules of Civil Procedure, took steps designed to “manage” crushing dockets. Even today, the Rules Committee continues to tweak the Rules to encourage judicial management. But in that period of crowded dockets, federal judges also experimented with every available technique in an effort to move cases to resolution, including devices like summary jury trials, corporate mini-trials, and early neutral evaluation, a few of which are now almost forgotten. I’ll admit that some of what judges incorporated into their local rules and standing orders made it difficult and expensive for lawyers to try civil cases in federal court.


Madge, you federal magistrate judges were a big part of that management effort when the Article III judges were all tied up in trials and sentencings. What was your role?


Federal trial judges pleaded with us to find a way to resolve large numbers of civil cases without trial, because the judges simply didn’t have trial days available. So we called the lawyers into court for status conferences periodically, painted a dire picture of the likelihood of reaching a trial date any time soon, and tried to jawbone them into settlement, or mediation, or even motion practice that would narrow the issues, hoping that settlement would then follow. We were conscientiously trying to resolve disputes in an environment where there was minimal judge time to actually try all the civil cases on the docket. But we were increasing litigation expenses and complexity by our recurrent conferences, and our actions undoubtedly sent the message to lawyers that federal courts were not particularly hospitable to civil trials.


Trial and magistrate judges’ actions were only part of what was happening then, Lang. The financial stakes in federal court were getting higher and higher as Congress increased the jurisdictional floor for diversity-jurisdiction cases from $10,000 to $50,000 in the 1980s, then to $75,000 in the 1990s; as more federal cases invoked complicated science, economics, and engineering; and as class actions proliferated. Many cases required expert witnesses and, in a series of decisions, the Supreme Court instructed trial judges to carefully screen such testimony. The result was extensive discovery and motion practice concerning experts, their science and techniques, their past activity as an expert witness, and any economic interest that their testimony might further. Both trial preparation and trial itself became very expensive. More recently, the astounding growth of digital information has generated huge discovery expense in some cases, and magistrate judges have been called upon to spend a lot of time with the lawyers, the parties, and their IT experts to manage that. All those factors have driven up the price of lawsuits and trials.


Something else was going on as well. Thirty years ago, aside from business arbitration, alternative dispute resolution (ADR) providers were few and far between in many parts of the country. Academic enthusiasts began to push the concept of a “multi-door courthouse” that would provide a choice of methods to resolve disputes. Congress got into the act through the Civil Justice Reform Act of 1990 and later ADR legislation to ensure that ADR options were available in federal court. Law schools started to teach ADR, some organizations started promoting it to companies, and soon lawyers and others began to offer ADR services. Now there are ADR providers on every street corner. And arbitration clauses started to appear in consumer contracts everywhere, for everything from cellphones to credit cards to stock purchases to consumer software.


I’m glad you spoke up, Linda, because I was about to call on you. Talagud intimated that you are active in federal trial court but that you do not try cases. What does that mean?


It means that I, and lawyers like me, are the backbone of federal civil practice today. For cases that won’t be arbitrated, we are the ones who draft the complaints and answers, litigate the motions to dismiss and the class-certification motions, engage in the discovery practice, conduct the expert depositions, handle the Daubert and summary judgment motions and, if the case is still alive after all that, counsel mediation or settlement. Trial lawyers like Talagud look down their noses at us, but we have become the focus of federal court work in civil cases.


Well, Linda, are you engaging in all that activity in preparation for trial?


Candidly, no. I don’t expect a trial. If I am acting for a defendant, I am trying to get a decision in the defendant’s favor by motion, without the risk of a trial, or to make the case so expensive for the plaintiff’s lawyer that a low-ball settlement is possible. If I am representing a plaintiff, I am trying to demonstrate the strength and value of my client’s case to enhance settlement prospects and thereby get a recovery without the risk of a trial, appeal, and delayed payment. So my discovery and pretrial preparation are geared toward pretrial events that culminate in the summary judgment dance and settlement.


Before you leave us judges, Lang, I want to emphasize that the orchestrated judicial push to discourage trials is past. Now most federal trial judges welcome civil trials; after all, trials of all kinds are why we became judges. I no longer seek settlement conferences, although I will do one when asked. I tell the lawyers and their clients that I would love to preside at their trial. But still the cases settle. Sometimes I think that the tort reform movement scared the country about jury verdicts. The size of the jury verdict, unless it is small, is always the headline or the first paragraph of the online story.


One more question, Nielsen and Madge, before I turn to others. The number of federal magistrate judges has grown significantly, and I understand that the federal courts could not handle their caseloads without them. Why the growth, and does the growth bear any relationship to the vanishing trial?


Congress has not enacted omnibus judgeship legislation in decades, partly on account of the interparty rivalry over which political party will control the selection of the new judges. But Congress has been willing to fund the judiciary to appoint new magistrate judges on a merit-selection basis with no party politics involved. Without those magistrate judges, Lang, the federal courts would not be able to function.


Magistrate judges do carry an important part of the criminal and civil caseload. Part of the beauty of the magistrate judge system is that districts can use magistrate judges in varying ways, fitting the usage to the particular needs of each district. In some districts, magistrate judges are on the wheel for initial random case assignment just like district judges. In districts where magistrate judges have more specialized duties, most of us encourage district judges to assign us a chunk of civil motion practice like motions to dismiss and motions for summary judgment because we enjoy the intellectual challenge they pose. Some district judges decline to make such assignments, but when judges do give us substantive motions, lawyers tell me that having magistrate judges involved actually increases the cost of litigation because it creates one more level of review where lawyers must prepare and file legal memoranda. I doubt that extra expense is significant to the cost of federal civil litigation, but it could be a factor.


Back to you, Talagud. If Nielsen is correct, that most federal judges no longer discourage civil trials, why aren’t trials coming back? Why aren’t you trial lawyers actively trying cases?


I still want to hear Manny’s general counsel insights, Lang, but let me give part of the answer, “confessing error” like Nielsen and Madge did. One response is that these days many federal lawyers like Linda lack solid trial experience and are therefore hesitant to actually try a federal case. Hell, lawyers like Linda don’t even set foot inside the federal courthouse. They file all their lawsuit “papers” electronically, and too many federal judges seldom entertain oral argument. And candidly, even in the heyday of trials, many “trial” lawyers didn’t really want to go to trial. A trial lawyer leads a difficult life, with scheduling unpredictability, motel or hotel living for days on end, working nonstop while the trial is on, dealing with huge stress — it’s tough on family life and on blood pressure. Sure, there is a wonderful high when you win a substantial jury verdict, but disappointment and client resentment when you lose (and someone always loses!). I love to try cases but I can’t now — and couldn’t 30 years ago — say the same for a lot of my colleagues. But I think the most important component in the decline of trials is that clients no longer want to take the risk of what a jury will do. In fact, many are afraid of juries. Something certain, as in a settlement, usually appeals more to plaintiffs than the risk that the jury may award them nothing. Same thing for defendants: they prefer a fixed, manageable amount to pay over the risk of a huge, company-threatening verdict and the distraction and expense of the trial process. Clients are far more in charge these days than they once were.


I mentioned the fear of jury verdicts. But it’s not just jury trials that have declined. Bench trials in federal court also are greatly reduced in numbers. Talagud, why do you and your clients avoid even bench trials?


Nielsen, you federal trial judges are no longer the only game in town. These days we can find more attractive alternatives that are also cheaper and faster. You judges won’t let us select the dates for proceedings, unlike arbitrators who want our return business. You schedule hearings to fit your schedule regardless of ours, and, what is worse, you put us on a trailing list or, if you do give us a firm trial date, you renege if you have a criminal case you have to try. And you do everything in public! When I represent defendants who want to protect their business reputations, they want everything under wraps. Sometimes plaintiffs do as well, if the case will involve private details of their lives or experiences. Plus you feds won’t let us choose our judge and you insist on being generalists. With arbitration we can choose our judge and ensure that she is knowledgeable in the area and not biased or lazy. In arbitration, the rights of appeal are limited, thereby cabining costs and delay. Same for mediation: We choose the mediator, and when it’s over, it’s over. Those are some of the reasons why our clients choose ADR over trials. You feds just can’t compete! But I’d like to ask Manny a question. Manny, why won’t you and other corporate counsel let lawyers like me try your cases to verdict anymore?


Talagud, unlike you and your fellow trial lawyers, we don’t go to court because we enjoy the experience of a public trial. We simply want a fair and economical resolution of our disputes. We consider every avenue to that end, and we choose the one that best serves our interest. Very seldom is that a federal trial in open court.


Fair enough, and that economic assessment affects both sides. Plaintiffs’ lawyers no longer file the kinds of cases they used to because they are better able to predict what it will cost them to pursue a case. Entrepreneurial lawyering, together with time and expense data, has produced better management of cases overall, including knowing when settlement is better than trial. The same is true on the defense side. General counsels, insurance companies, corporate defendants — all are data-driven and risk avoiders, and they will not allow their lawyers to spend a small fortune to try a case that is not worth the expense.


Exactly. In fact, most institutional defendants such as corporations and insurance companies have made a virtual science of risk management, especially if they are repeat players in court. They know when to hold and when to fold, and general counsels like me are always watching to avoid excessive risk, or litigation whose expense exceeds the value. Talagud mentioned entrepreneurial lawyering, and I want to talk more about that. When a generous jury verdict against a company hits the news media, entrepreneurial lawyers come out of the woodwork to file copycat cases, hoping to share in the bonanza. Defendants therefore are always looking not only at what is a fair resolution of a particular dispute, but also at how it will affect the entire portfolio of cases that they have or can expect. That is one of the reasons that we want to settle or arbitrate in private. Arbitration and mediation are cheaper and faster, and, unlike in court, arbitration and mediation let us keep all these matters confidential. Likewise, in lawsuit settlements, we use nondisclosure agreements. I might also mention that a trial’s focus on what actually happened is often not the most helpful focus in a business dispute, and mediation can instead steer the parties’ attention toward how to improve things going forward.


Aren’t the expense and speed differences between arbitration and federal court that Talagud mentioned a few moments ago overstated? Linda, you do a lot of federal pretrial work. Is discovery overwhelming in federal court? Are the federal courts slow?


In some cases, digital information discovery can be overwhelming. But empirical data show that the monumental discovery expense people talk about actually involves only a small percentage of the cases. Lawyers who arbitrate tell me that discovery is increasing in arbitration and that arbitration is becoming more expensive. As for speed, I do know that arbitration is not always speedier than a lawsuit, certainly not in federal courts that have rocket dockets. But there are federal courts, especially border courts dealing with immigration and drug offenses, where it is difficult to move a civil case to resolution, and there arbitration is undoubtedly more efficient. I also have the sense that a lot of small businesses that serve consumers are plugging into their contracts arbitration or mediation clauses that they have found online, thinking that ADR will be cheaper for them in a dispute and that they won’t necessarily have to hire a lawyer.


Cost and speed may not always be the strongest arguments in favor of arbitration, but secrecy and ability to choose the adjudicator remain very important. On secrecy, let me be explicit that our greatest concerns as defendants these days are consumer and class-action lawsuits. One generous, publicized verdict generates extensive and expensive copycat litigation by lawyers looking for fees. If we have a dispute that is just between two companies, or another type of dispute that is a “one-off,” I am much more willing to go to trial. Courts are fine for those disputes because I can expect an unbiased and careful judge, and I am not concerned about the multiplier effect. But where a particular lawsuit may be representative of hundreds or thousands of other claims, I have to manage the multiplier effect. To respond to an earlier question, that is why companies use arbitration clauses in their consumer contracts and why I try to get rid of class actions and comparable matters before there is a precedent that will generate the deluge. And let’s face it, not many consumers pursue arbitration, with or without a lawyer. You know, arbitrators and mediators actively market themselves and point out the effectiveness of what they do. I don’t remember a federal trial judge ever asking for my business or marketing the advantages of a federal court for dispute resolution. Federal courts just sit back and expect all disputes to come to them as they used to, but the world has changed. As someone said earlier, judges are no longer the only game in town for civil disputes, and they never will be again. I learned in law school about ADR, and I learned then that it was cheaper, quicker, and more predictable. That is still the mantra of the general counsels whom I know. Indeed, many corporations signed a pledge many years ago to try ADR first, in preference to litigation. What we know for certain is that trying a case in federal court will be hugely expensive.


Manny may be onto something in his comment about the indifference or aloofness of federal courts. When we do come to court, my clients and I often feel like we are barely tolerated. We have to go through an airport-style metal detector, give up our cell phones, sometimes go through a pat-down, and then sit and wait for the judge. We have to stand up every time the judge comes into a room, call him or her “your honor,” and make sure not to offend in any way. The arbitrators and mediators we pay to work for us don’t put us through those humiliations. The process outside of court is all much more businesslike and down-to-earth. I understand that with the kinds of criminal cases that federal courts process, security is necessary, but the whole federal court package sure can be off-putting and antiquated for civil disputes in the 21st century.


Do you think we federal judges could get more trials if we devised simpler and quicker procedures for smaller-stakes cases, limiting discovery and motion practice? Would those cases then get tried?


I doubt it. As Manny has suggested, litigation expense is only one of the many elements driving the trend away from trial.


I’m beginning to get it — a host of factors collectively discourage federal civil trials. But look at what we are losing with the civil jury trial’s decline. Usually people who have performed jury service end up with greater confidence in their country’s system of justice. Some scholarship even suggests that they are more likely to vote than other citizens. As Judge William Young tells his juries, “Every single jury trial is both a test and a celebration of the rights of a free people to govern themselves.” The jury system has been a unique element of American democracy, a central idea of the bill of rights — grand jury, criminal petit jury, and civil jury — and the civil jury even has its own separate amendment, the Seventh. The framers did not see juries as simply a way to resolve disputes, but as part of a functioning democratic republic that involved citizens directly in the application of laws and in restraining officials. In the 1830s Tocqueville famously remarked that jury service helped educate American citizens about their laws and about how their government operates. It may be the only opportunity some citizens have to participate in government. Are we really going to lose all that?


With the decline in trials, I have noticed that fewer law school and high school classes actually visit my courtroom to watch justice at work. Watching a civil jury trial is, in Professor Akhil Amar’s words, watching jurors, judges, lawyers, litigants, and witnesses “reaching out for justice.” I fear that we federal judges will not have the same moral authority without citizen juries partnering with us. Jury trials have been part of our history: John Adams was a trial lawyer; Abraham Lincoln was a trial lawyer; the entertainment media continue to reflect jury trials as part of American culture. This decline in civil jury trials is a huge loss to our principles of popular sovereignty in a democratic republic.


Those are stirring words, Lang and Nielsen, and jury service probably does amount to a good civics lesson, although many jurors pay dearly for it in delays, wasted time, and inadequate compensation. But my company, and defendants like it, are focused on the bottom line and on risk avoidance in particular cases. Even with the Seventh Amendment, it is a private choice whether to arbitrate, mediate, go to jury or bench trial, or settle; parties will not sacrifice their economic concerns for the good of civics. And let’s not be too romantic about our jury trial history. Remember, civil jury trials have basically disappeared in other common law countries like England, Canada, Australia, and New Zealand. I’m not aware that their democracies have suffered as a result.


As an appellate judge, I have been silent in this discussion and, contrary to Talagud’s suggestion at the outset, I don’t try to make the law complex; federal law already is complex. But let me ask this question from my perspective: With more cases going to mediation and arbitration, aren’t we losing an important avenue of law development, where appellate judges like me pronounce and elaborate upon the law? Arbitrators and mediators don’t fill that role.


I have the same answer for you as I gave Nielsen, Coar: That’s not my and my company’s problem.


Coar, I’m not sure that your concern is well-founded. Last time I looked at Westlaw and Lexis, it seemed to me that you judges are putting out more legal verbiage now than at any time in history, and the last thing that needs to concern us is an insufficient quantity of judicial opinions. Since you feds have become more hospitable to summary-judgment motions, even trial judges now are writing an abundance of opinions. I do wish that all of you would write opinions that made future case outcomes more predictable, but that’s a topic for another conversation.


I will wait for that conversation because, although this one is fascinating, as a transactional lawyer I don’t really have anything to contribute on this topic. But I do note that arbitration clauses seem to be occupying the field in consumer contract cases. I think that Coar therefore has a point. Even though there may be a lot of judicial verbiage in the ether, we may be losing the judicial voice in the particular category of consumer contracts.


There is another consequence of the decline of trials. When we appellate judges review trial outcomes, we give enormous deference to the jury verdict or to the judge’s findings of fact. But when we review dismissals or summary judgments, the deference disappears altogether.


Talagud mentioned the writing of opinions on summary-judgment motions. Is part of the reason for the decline in trials the fact that more cases are being disposed of by summary judgment or motions to dismiss under the Supreme Court’s recently tightened pleading standards?


Lang, I am aware of that assertion in some of the academic discussions, but I’m skeptical. Everything I see on my docket tells me that even if I denied more summary-judgment motions or denied more motions to dismiss, those cases still would settle, rather than go to trial. The dismissal and summary-judgment hurdle certainly affects the settlement value of the case and the plaintiffs’ ability to recover, but I don’t think it appreciably reduces the number of cases that actually make it to trial.


Here is one more reason why there are fewer trials today. There are whole categories of cases that we generally don’t try any longer, like automobile accidents or FELA railroad injuries, because we have abundant data on what they are worth and settle them accordingly. Simply put, we can do the math. When new laws come on the books that give people new rights, then they usually do generate trials until once again lawyers and litigants have enough data to evaluate the risks. So when the EEOC adopted sexual harassment regulations in 1980 and when the ADA went into effect in the 1990s, those laws generated lawsuits and trials. There hasn’t been a new block-buster federal law with a private cause of action in a long time. If and when there is another, then you can expect a resurgence of trials, at least for a while.


Lang, the volume of civil trials may not come back, but the availability of federal civil trials remains an essential element of what lawyers and litigants do. It is true that we resolve cases mostly by other means, but that resolution occurs in the shadow of the federal system of justice. Federal civil trials must remain as a default mechanism.


But without a significant volume of contemporaneous civil trials and verdicts, Linda, you, Talagud, and Manny may be relying on numbers that are out of date because of their age — or worse, current verdicts that, if you had more of them, you would recognize as outliers, not representative. So the settlement numbers you all use actually may be skewed.


I really think that looking backward, trying to bring back civil trials as they once were, is not productive in the final analysis. We should be looking to the future. The expense and logistical difficulties of assembling everyone in one room at one time are being overcome by technological advances that allow people to interact from remote locations, and our assumptions as oldsters about the centrality of physical face-to-face interaction are not shared widely by young people. Perhaps one defect in the “collective wisdom” of this group is that we have no one from the youngest generation. Online companies have developed ways to engage in dispute resolution within their community of users online, even including blind negotiation techniques that are quite creative. Now offline companies like mine are looking carefully at the utility of online resolution for other types of disputes. I’m not sure that the American tradition of public trial as live theater — where everyone sees all the testimony, then expectantly awaits a jury’s decision in real time — will survive.


Whew! Federal trial courts seem to face an unmeetable challenge. Congress and the Supreme Court demand that they do everything in public. Congress directs that they give criminal cases priority. The Rules Enabling Act and the Rules Committees mandate certain rules concerning discovery and class actions. As long as courts were the only game in town, none of that mattered. But the judiciary and Congress in the ’80s and ’90s provided an environment in which ADR providers established themselves. For civil disputes in today’s world, federal trial courts have become sort of like the U.S. Post Office — once a monopoly and essential, but now struggling to compete with private providers like FedEx and UPS who can offer services that the Post Office cannot. Alternatives like mediation and arbitration are federal courts’ FedEx and UPS. Sometimes private providers can fulfill the dispute-resolution role — not civic education, but dispute resolution — at least as effectively as courts, but for less money and with fewer undesired side effects.


This is all very depressing. Lang has talked about the negative effect on American democracy as citizens more and more lack the experience of serving as jurors. I think the downside of the decline in trials goes even farther than that. Yes, there may be a gain in cost or efficiency, but I fear the loss of public trials, jury or nonjury. I recognize Manny’s concern about copycat lawsuits, but arbitration, mediation, and the strong pressure to settle allow a cover-up of corporate misbehavior, of product defects, and of abusive governmental or police behavior. I also worry what the lack of trials will do to the opportunity to train young lawyers to conduct the trials that do remain and what it will do to federal judicial selection as candidates for federal judgeships come to realize that in many districts they really won’t be conducting civil trials.


Friends, I’m sure there is much more that could be said on this topic, but we have run out of time. I don’t see how this train can be turned around. Nielsen, what do you think lies ahead for you and your federal trial judge colleagues so far as civil trials are concerned?


We simply must do our best with what we have, which is what the Constitution, Congress, and the President assign us, and the disputes that people and entities bring us. Federal judges ought to do a better job of accommodating lawyers and litigants. Judges can’t increase juror pay, but we can increase our efforts to make jurors’ lives pleasant during their service and to teach them. Other steps are up to Congress, the Supreme Court, or perhaps an executive agency — Congress by legislation to limit arbitration in consumer cases, for example, or to limit its secrecy, or to pay jurors more; the Supreme Court by re-examining whether its expansive interpretation of the Federal Arbitration Act is historically justified; the Consumer Financial Protection Bureau by limiting the use of arbitration clauses in consumer transactions subject to its jurisdiction.


Don’t pin your hopes on congressional or Supreme Court action, Nielsen, and even if the Consumer Financial Protection Bureau should act to limit consumer arbitration clauses, don’t expect a wholesale resurrection of civil trials. What you have now is the new reality. Get used to it!


This piece was originally published in Judicature , and is republished here with the publication and author's permission. The original piece, which includes footnotes and illustrations can be found at
Hon. D. Brock Hornby

Judicial Advisor & Senior United States District Judge for the District of Maine

A Testimonial & Thank You From a Recently Discharged Houston Juror

I wanted to take a moment to thank each of you for your work with the Civil Jury Project. It’s a worthwhile endeavor to improve an opportunity the authors of our country’s founding documents had the foresight to provide for us.

In addition to serving on the panel [at the Civil Jury Project's October conference in Houston,] I had the privilege to participate in the interview process afterward. One of the questions posed to me was, “What would you say to someone who has received a summons to serve?” My gut reaction was, “Just make it happen.” I’m not sure I was even that gentle, but it did lead me to continue to think on it on the drive home. My more eloquent response would be to challenge those called to not think of it as a summons from our government, but from a neighbor who needs you. 

It has become habit for many of us to consider government an inconvenience that happens to us and complain about anything that feels like an additional imposition to our daily life in order to serve the Regulators. But in the case of being asked to serve on a jury, it may help to direct people to see it as an opportunity to be part of a solution and to bring justice into the day of someone who is seeking to make the system work for them; for all of us. It’s not a duty to our government, but an opportunity to help real people like ourselves.

Not everyone is going to be driven by community service or civic participation, but putting a face to it rather than an emblem might be a direction to consider. In one of my interview responses I shared that having been a juror a number of times has given me the appreciation for my peers and the system if I should ever need to be on the other side of the room. In fact, my daughter did find it necessary to seek assistance in court when she was hit by a driver.  We were extraordinarily grateful to a diligent jury who took the time to hear the facts and reach a fair conclusion. So this is a reciprocal process.

Anyway, I just wanted to thank you for the time and effort you are putting toward this project in addition to your already busy schedules. I was glad to be part of it and hope the very best for each of you.

Best Regards,

Marvelyn Granger


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