Where have all the jury trials gone?

Without being willing to lose at trial, you can never really win

Craig Peters
2015 February

Exhilarating, frustrating, terrifying, satisfying, exhausting, distressing, thrilling. It’s a jury trial. Many of us went to law school not just to become lawyers, but to become trial lawyers. Despite this, the number of jury trials in this country and in this state is rapidly declining. In 2002, the litigation section of the American Bar Association completed a study regarding the number of cases that actually went to a jury trial. Its findings are startling.1

From the time period of 1962 until 2002, the number of filings in federal court for tort cases increased fivefold. During that same time period, the number of cases that went to jury trial dropped from 11.5 percent down to 1.8 percent. For tort cases in 1962, one in six cases went to jury trial. In 2002, that number shrank down to one in forty-six. Even if we assume that the number of trials has decreased at a slower rate than what was seen from 1962 to 2002, it still means that at the beginning of 2015, the number of cases that will go to jury trial will be less than one percent of those filed.

Why has this happened?

Formidable special interests have methodically waged an ongoing war on plaintiff’s attorneys over the past 30 years, effectively driving down verdicts and causing the public to look on personal injury cases with great skepticism. Some of these same forces have resulted in significant obstacles that impede a plaintiff’s willingness to go to trial, such as “loser pay” rules; or ability to go to trial, such as mandatory arbitration and MICRA. The realities of trying to run a plaintiffs’ firm, such as keeping the lights on and making payroll, profoundly discourage trial and promote settlement. Then, as if we need a constant reminder of the myriad impediments to going to trial, at every mediation we hear the dire warnings:

“This is a chance for certainty.”

“You can avoid the additional costs of litigation.”

“Resolving this now will give you time to work on your other matters and ensure that you are not wrapped up in an appeal years from now.”

Should we care?

Why should we care that the number of jury trials has dropped so dramatically over the past 50 years? The simple answer is that they play a critical role in the protection of our democratic system of government. Recall that our founders designed the judicial branch and its unique set of rules, specifically to create a level playing field between the powerful and the weak. While the wealthy and strong might be able unfairly to influence the legislature, the courts were a place for justice, not subject to the blowing winds of majority rule or the weight of political power. James Madison said, “In suits at common law,…the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.”

Democratic governance relies upon the resolution of disputes between people in the public courts, for all to see. Confidential settlements inure to the benefit of the insurance companies and big corporations that are able to aggregate this information for their own advantage. Fewer and fewer opportunities for the public to be a part of a jury trial means fewer chances to participate in direct democracy, and to witness firsthand the good that the courts do in serving the average citizen. By taking our cases to trial, we help to ensure the safety of the community and the vitality of our judiciary. If jury trials were a greater part of the average citizen’s experience, and they witnessed the important role that the judiciary plays in the everyday lives of citizens, the citizens of California would hold their legislature and the executive branch more accountable. Those branches of state government would not be able to get away with putting the financial stranglehold on our judiciary that they have, by withholding funds from them.

What is our role in this?

We, as plaintiffs’ lawyers, need to look at ourselves and share in the responsibility for the rapidly disappearing jury trial. A big reason why we do not go to trial is because we fear losing. Our legal organizations exalt and extol the exploits of winning trial lawyers. In some cases, these winning trial lawyers have achieved mythic status. And the appearance, to those with less experience or fewer resources, is that these “great” lawyers never lost a case. But here’s a secret: they have lost cases. Without being willing to lose, you can never win. The mere act of going to trial and representing your client to the best of your ability is a win, regardless of the decision of the jury. It makes public that which might have otherwise been private (due to a confidentiality clause in a settlement agreement). It gives our clients a chance to tell their story. It gives the public a chance to meaningfully participate in their democracy. Perhaps most significantly, it gives plaintiffs’ lawyers and plaintiffs, a chance to show the public the importance of our judicial system and its ability to level the playing field.

How can we revive the disappearing jury trial?

We must start with a change in our attitudes. Winston Churchill famously said, “Success is never final, failure is never fatal, courage is what counts.” We should never get comfortable with losing, or expect it as an outcome for our trials. But there is no skill more important to being a good advocate for our clients than the ability to handle defeat, to not be paralyzed by its possibility, to wear the result of a loss as a badge of honor. Failure is not falling down, but refusing to get back up. I experienced long ago that little is learned from trial victories; the education comes from trial disappointments.

Every event is part of a larger whole

Most lawyers spend our lives competing. And we become used to winning. What tends to happen, however, is that our definition of “winning” is rather narrow. We look at a trial as good or bad (a “win” or a “loss”) based on a straightforward analysis of the result at the end of the case. While this is certainly fair, it lacks an appreciation for what we have accomplished in the larger context. It is important for all of us, as advocates for the people in our communities, to think about our cases in the context of the
bigger picture.

It is difficult to take a long view and not be daunted by the prospects of the immediate result of our efforts in trial. However, as plaintiffs’ lawyers, if we can let go of our fear of losing we can engage in the critical act of trying. Failure is not an unsatisfactory verdict; failure is abdicating our responsibility to try our cases.

The many reasons we oft hear repeated about why not to go to trial, will always be there. But, if we don’t protect the right to a civil trial by jury by exercising that right on a regular basis, who will? Corporations and insurance companies would like nothing more than to see us give in and give up, because they have added to the chorus of voices telling us that going to trial is just too hard and the chance of failure too great. This is a challenge that we must meet head on. If, as plaintiffs’ attorneys, we can’t accept failure, we can’t succeed.  Basketball great Michael Jordon said, “I missed more than nine thousand shots in my career. I have lost almost three hundred games. Twenty-six times I have been trusted to take the game winning shot, and missed. I have failed over, and over, and over again in my life. And that is why, I succeed.”

Craig Peters Craig Peters

Craig M. Peters is a partner at Altair Law. He handles complex and catastrophic cases involving severe injury or death. He has experience dealing with product defects, dangerous property conditions, vehicle and machine accidents, and professional negligence. He has a record of success in both settling and trying cases to verdict.

Craig is proud to fight for justice on behalf of his clients and is committed to helping them through a difficult time in their lives. The clients he helps have suffered from brain and spinal cord injuries, neck and back injuries, bone fractures and nerve damage, burn injuries and psychiatric injuries. Craig has extensive trial experience representing families and individuals who are union members and laborers, service industry workers and white-collar professionals.

Prior to starting Altair Law, Craig was a trial attorney representing victims of asbestos exposure throughout the State of California. He was a criminal defense attorney for 13 years and went to trial on a full range of cases from misdemeanors to felonies. During the last three years of his criminal defense work, Craig was the Director of Training for the Office of the Public Defender in San Francisco.

In addition to teaching trial skills at Hastings College of Law and University of San Francisco School of Law, Craig has been a professor of Constitutional Law and Evidence at San Francisco Law School. Craig is a member of the International Academy of Trial Lawyers (IATL), American Board of Trial Advocates (ABOTA), the American College of Trial Lawyers (ACTL), a five-time finalist for the SFTLA Trial Lawyer of the Year and a finalist for the CAOC’s Consumer Attorney of the Year.

Where have all the jury trials gone?
Where have all the jury trials gone?

Endnote

1 Litigation, The Journal Of The Section Of Litigation, American Bar Association, Vol. 30, No. 2, Winter 2004.

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