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How “Trial Lawyer” Became an Oxymoron: A lament for the disappearance of civil jury trials

By 2012, most sources suggest, fewer than 2 percent of all federal civil cases went to trial, with less than 1 percent being tried to a jury. Civil jury trials are literally on the brink of extinction. This article traces their decline and explores what’s been lost in the process.

As I look back over 45 years of practice, almost exclusively in the civil trial/litigation arena, it is hard not to notice that there are increasingly few role models for the trial lawyer as time goes on. Indeed, many of the traditional role models for trial lawyers have either been fictional, such as Atticus Finch, Perry Mason, and Alicia Florrick (The Good Wife), or are no longer practicing lawyers, such as Abraham Lincoln, Clarence Darrow, Thurgood Marshall, Melvin Belli, and Ralph Nader. And among those, most are remembered for their criminal defense, not civil trial, work.

When you ask a litigation-focused colleague to identify two or three currently practicing Minnesota civil trial lawyers whose reputations precede them, the question will generally be met with a long pause, followed by tentative reference to a handful of longtime veterans who have retired or are nearing retirement. In my experience most Minnesota lawyers (whether or not they consider themselves trial lawyers) are hard-pressed to name even a single publicly prominent and currently active civil trial lawyer, let alone one whose career is etched in the public imagination.

There is a reason for this. Trials—real civil jury trials—hardly ever happen anymore. “Trial lawyer” does not mean what it used to mean. I strongly suspect that every currently practicing lawyer who thinks of him- or herself as a trial lawyer knows exactly what I am talking about.

As I thought about this, I really thought I had stumbled onto a topic that needed a closer look. But I soon discovered I am very late to this party—the dearth of civil jury trials has been a steady topic in legal academia and in the realm of bar activism for a very long time. Much to my surprise, I stumbled across a 1974 piece in the ABA Journal by Minnesota’s own Federal District Court Judge Edward J. Devitt, in which the very title of the article reflected his own view: “Federal Civil Jury Trials Should be Abolished”(!) Compulsory use of juries, he opined,

“…is an unnecessary, time consuming, and costly appendage to our system of justice and does not well serve either the litigants or the public. Judges in the federal system are at least as well qualified as juries of lay people—probably better qualified—to decide issues of fact and law fairly.”

The persistent backlog of cases in federal court, Judge Devitt said, “is caused largely by the number of civil jury trials required by the 7th Amendment.” “Certainly,” he contended, “we cannot continue just to add more judges and build bigger courthouses.”1 And though the great weight of published opinion that can be found on this topic seems to relegate the late Judge Devitt to a lonely minority, the great weight of experience has proved Judge Devitt’s views prescient if not popular.

The brink of extinction

The sad fact is that the civil jury trial is almost gone, and not just in federal courts. The phenomenon is national, and has almost reached the point that the civil jury trial will soon be a memory shared only by grizzled veterans, and will only rarely (and apparently reluctantly) be experienced by today’s litigators.

The numbers are a little startling. As of 2012, most sources suggest that fewer than 2 percent of all federal cases went to trial, with less than 1 percent being tried to a jury.2 Civil jury trials are literally on the brink of extinction.

An October 2015 Star Tribune article reported on a $9.1 million medical malpractice plaintiff’s verdict by a Hennepin County jury, won by a Robins Kaplan lawyer. What jumped out at me was the newspaper’s report that this verdict (then the third largest in state history) was the only one of the 50 largest malpractice awards ever reported in Minnesota that resulted from a jury trial.3 (More recently, a second malpractice jury award was added to the top 50—again by the Robins firm—with a record award of $20 million in the case of a woman who died after giving birth.4)

My purpose is not to explore the pros and cons of jury trials per se, but rather to look at this sad phenomenon in terms of its impact on all lawyers at a time when the profession is experiencing changes at so many other levels. One heritage we have always had in common is the history of trials and trial lawyers, the methodology and procedure of trials and evidence (which every single one of us studied in law school), and the very language of the courtroom in general. We have thus inherited a collective self-image, even if many of us are not frequently immersed in lawsuits or courts. When non-lawyers think about lawyers, the vague image in their head is almost certainly someone arguing in a court of law. After all, Abraham Lincoln—who, like Clarence Darrow, never attended a law school—is reputed to have tried thousands of cases in his career as a lawyer; don’t we all want to ride those coattails to some extent?5

No one has captured this phenomenon more colorfully than Iowa Federal District Court Judge Mark W. Bennett in a 2014 article entitled “Obituary: The American Trial Lawyer, Born 1641 –died 20??” which appeared in  the magazine Litigation:

“The American trial lawyer (ATL), who, in innumerable ways enhanced the lives of so many Americans and made the United States a fairer, healthier, safer, more egalitarian and just nation, passed away recently. Although a precise age is uncertain, ATL is believed to have been at least 371 years old at the time of death.…

“The autopsy determined that ATL most likely died from a long term, progressive illness exacerbated by a slow, debilitating virus …commonly known as Celotex-Anderson-Matsushita syndrome. The death certificate also lists… a surge of ‘litigation industry’ cancer cells – replacing healthy trial lawyer skill cells;… the vanishing civil jury trial….; a genetic mutation of the civil justice system that came to be known as ‘ADR’;… [and] the inability of courts to implement reforms that would have reduced the enormous cost of getting cases to trial and enabled ATL to go off life support….”6

Judge Bennett’s obituary identifies ATL’s surviving heir as “American Litigator (AL)”, who is “the bastard child of ATL and ADR.” The judge explains that “ALs do not try cases; ALs ‘litigate’ them.” ALs, he suggests, are defined by their lack of actual jury trial experience despite the fact that they “spew courtroom jargon to clients and opposing counsel as if they were real trial lawyers.” But ALs are frauds, the judge asserts, because

“They file motions…and bill endless hours for developing untested and unrealistic trial strategies…generating Everest-like mountains of paper. They are paper tigers. They never work alone, always traveling in packs. As trial dates approach, their relentless bravado evaporates into unlimited excuses to settle.”

Nor can we fail to notice that ALs prefer to travel in packs. It is very common to see several attorneys in the courtroom during the argument of a motion, for example. A classic example of the pack instinct occurred as I was preparing this article, when one of my partners attended oral argument before an 8th Circuit panel relative to an interim defense appeal of class certification in a large case. No fewer than eight lawyers sat at opposing counsel’s table, though only one spoke!

Gamesmanship

In my own 45-year practice, weighted during the last two decades toward class and collective actions, I noticed all of these things. Since the late 1990s, jurisdiction, venue, and discovery requests, however ordinary, were more and more frequently opposed and, where possible, interlocutory appeals were filed that could consume a year or more. New technologies led to defense production of hundreds of thousands or even millions of pages of useless information in response to discovery requests. These pages were located and selected not by lawyers but instead either by computers or non-lawyers, either or both of which might be located in another country. Today it is simply a fact that trials, like total eclipses, only rarely happen.

Experienced trial lawyers know that 90 percent of everything that happens in discovery never makes it into court, says prolific Texas lawyer Stephen Susman, which is another way of saying that 90 percent of what happens in discovery is not important to the case outcome. Today’s litigators, he argues, “try to determine whether any particular [litigation] practice is beneficial to their side while being detrimental to the other side,” which in turn rests on the assumption that “if the other side likes it, I don’t,” and vice versa.7

Small wonder that most large-scale civil cases are settled. Long before trial is even a possibility, the judge is sick to death of the endless motions. He or she orders mediation, often more than once, and sometimes related not to case resolution, but only to discovery issues. In federal court, jurisdictional, procedural and discovery issues are often delegated to a magistrate judge for resolution, and the latter’s resolution(s) are then re-litigated before the judge by the losing side. Most judges are quite persistent—and never ambiguous—about their desire to see the case “go away.” Trial lawyers know that they ignore such “desires” at their peril. This kind of judicial pressure, coupled with the enormous out-of-pocket expenses that now characterize nearly all complex civil cases, give clients on both sides of the case endless reasons to mediate or otherwise settle.

One result of the disappearance of trial lawyers is the advent of another new breed of lawyer: the mediator.
At hourly rates that compare with rates charged by most law firms, large numbers of former judges and some former litigators now travel from conference room to conference room, patiently explaining to litigants—and “litigators”—why trial is a bad idea and “splitting the baby” is a good one. Mediators’ personal success and reputations are heavily dependent on their success at settling yet another case that will never be presented to a jury.

The litigation cycle has come to be measured in years, not in months; in my own experience, most federal and state “rocket docket” initiatives did not succeed. And not all judges are temperamentally or intellectually up to the challenge of presiding over the increasingly complex pretrial process. One judge in my own experience sat on a class certification motion from 2004 until 2008! A 10-year lifespan is not unusual for a large case today; the nationwide multidistrict Fed Ex driver employee status litigation that emerged intact in 2016 from a series of interim appeals was originally commenced in 2003 and is still going strong! Though a settlement has finally been reached and approved, fights over attorneys’ fees in several jurisdictions threaten to increase this litigation’s age beyond its current 14 years.

So who and where are the real trial lawyers of today? Can we really deny that Judge Bennett is spot on? We “American Litigators” are increasingly dividing, re-dividing and sub-dividing ourselves into narrower and narrower categories of specialization. Individuals and entire firms specialize and sub-specialize in medical malpractice, environmental, land use, automobile, product liability, or corporate malfeasance cases. The trend reminds me of the old rhubarb about the definition of a true specialist—someone who knows more and more about less and less until (s)he knows almost everything there is to know about almost nothing at all.

Is it unfair to characterize modern complex litigation as an extended (and very expensive) form of gamesmanship? The game, of course, consists of jurisdictional challenges, venue challenges, Rule 12 motions, burdensome (and serial) discovery requests, burdensome (and serial) discovery responses, serial motions objecting to the discovery and the discovery responses, Daubert motions, appeals of magistrate judges’ rulings, interlocutory appeals on class certification rulings, directed verdict motions, and more. Tactics have essentially replaced trials as the modern method of resolving major disputes.

So it’s hardly surprising that trials have disappeared. Worse yet, the settlement agreements that terminate large cases more and more frequently contain confidentiality clauses that prevent the public from getting any idea of how much was paid, how serious the alleged wrongdoing might have been, or even from knowing that a settlement has been reached. This confidentiality in turn stifles public attention to—and discussion of—disputes that sometimes have important public policy implications.

Given the new generation of tactics, it is hardly surprising that judges take every opportunity to “get rid” of major cases before trial so they can focus on the plethora of small matters that come before them daily, many involving pro se litigants and criminal defendants whose cases do not interest “serious” trial lawyers.

Lawyers are by no means solely responsible for the demise of the civil jury trial. Business-backed lawmakers have played a major role—and for obvious reasons. Plaintiffs, after all, are a thorn in the side of business, and always have been. After protracted legislative battles ultimately won by business/defense interests, many types of cases, including the entire securities law arena, now face arbitration and can never be the subject of a jury trial. And while arbitration’s proponents argue that arbitration reduces the number of cases that might clog a docket, it cannot be denied that enforcement of the nation’s securities laws has been taken almost entirely out of the hands of federal courts and placed in the hands of business-friendly arbitrators. Stare decisis and judicial supervision now play virtually no role in the enforcement of these laws; nor does the arbitration process offer the safeguards of a jury trial, let alone meaningful review by an appellate court. Reported cases on securities law violations since the early 1990s are almost non-existent.

Nor do courts deplore or resist the (now) almost universal use of arbitration clauses and “no-class-action” clauses in consumer contracts, which were the subject of an exhaustive three-part study by the New York Times in November 2015.8 These clauses, which the courts have upheld, have undermined consumer rights generally because the amount at issue when a bank or a utility or a large service provider misleads or cheats a customer is often small relative to a single customer, but very large when all customers are considered.

Conclusion

The tone of my thoughts on this subject is obviously curmudgeonly. I feel lucky to have been in active practice at a time when jury trials were still a reasonably regular feature of the trial practice. I understand that plenty of lawyers take a dim view of plaintiffs’ lawyers in general and plaintiffs’ class action lawyers in particular.

But the underlying point is inescapable: Many of us became trial lawyers because we grew up with a romanticized view of the history, value, and efficacy of the American jury system, in which randomly selected citizens played a major part in resolving disputes of all kinds. The role models (fictional or otherwise) that we all observed as we grew up and thought about venturing into the legal profession have pretty much disappeared.

Nothing on the horizon suggests that jury trials—particularly on the civil side—will return any time soon. The trend is quite the opposite.

 

WOOD R. FOSTER, JR. practiced law in Minneapolis from 1968 through 2013, most of it as a litigator with the firm now known as Siegel Brill. He served as HCBA president in 1992-1993 and as MSBA president in 1999-2000. As a retiree, he works one day each week with the “St. Paul Regulars,” a Habitat for Humanity crew.  

 

Notes

1 60 ABA Journal 570 (1974)

2 See, e.g., Galanter, “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts,” Journal of Empirical Legal Studies 1 (2004): 462–63, 489 (1.8% of total dispositions in 2002); Administrative Office of the United States Courts Judicial Business of the United States Courts annual publications from 2000-2010 (1.1% in 2010). See, generally, Rebecca Love Kourlis and Dirk Olin, “Rebuilding Justice: The Importance of Trials,” Voir Dire • Spring 2012.

3 Minneapolis Star Tribune, 10/17/2015, ”Paralyzed Minnesota mechanic awarded $9.1M in malpractice verdict” http://www.startribune.com/paralyzed-minnesota-mechanic-awarded-9-1-million-in-malpractice-verdict/333412061/

4 Minneapolis Star Tribune, 8/29/2017, “Twin Cities jury awards $20M in malpractice case for woman who died after giving birth” http://www.startribune.com/jury-awards-20m-in-malpractice-case-for-woman-who-died-after-giving-birth/442132653/

5 Joseph F. Anderson Jr., “Where Have You Gone, Spot Mozingo? A Trial Judge’s Lament over the Demise of the Civil Jury Trial,” Federal Courts Law Review 4 (2010): 102.

6 Litigation, Vol 39, No.2, Spring 2013.

7 Trial by Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases, by Stephen D. Susman and Thomas M. Melsheimer

8 Part 1 of the series, and links to the other two installments, can be found at https://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html?mcubz=1

 

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