How Judges Can Further the Value of the Civil Jury Trial

How Judges Can Further the Value of the Civil Jury Trial

Annual Retreat of Eastern District of Pennsylvania

October 24, 2017

By Stephen D. Susman

Executive Director, Civil Jury Project

At NYU School of Law

Six years ago, when I turned 70, I began thinking that I might end my career as a trial lawyer by teaching trial advocacy at some law school. But I came to the quick conclusion that teaching dinosaur hunting was not the best use of my remaining years. So I became involved as co-chair of the American Board of Trial Advocates Save Our Juries Committee. It took me a few years to realize that bar organizations were not the way to have an impact on keeping jury trials viable: trial lawyers were gung-ho to work on non-billable projects only twice a year at conventions. Besides, they were too self-interested, too divided by loyalty to clients who wanted to go to trial and those who didn’t, too conservative to try new things, and too busy between conventions, to get anything done. So I came up with the idea of establishing an academic center at a law school that put together an alliance among academics, jurists and trial consultants to try to prevent the disappearance of jury trials. And I agreed to serve as an adjunct faculty member and the executive director on a pro bono basis.
The CJP was established at NYU School of Law in the fall of 2015 as the only academic center in the nation studying why jury trials are disappearing, whether we should care and if so, what can be done about it.
1. The CJP now has almost 250 Judicial Advisors (proving that most trial judges still want to try cases), and 9 of whom are on your court (proving that you are one of the benches most interested in trying cases). We also have 65 Academic Advisors and 35 Jury Consultant Advisors.
2. By teaching a course on How to Try a Jury Trial Intelligently, I had occasion to study the historical and empirical research attempting to identiy the causes of the decline. I quickly came to the conclusion that the main reason was that large businesses, in the early 80s, wanted to get rid of jury trials and that they had succeeded in doing so by getting law-makers and judges to reduce the number of causes of action and the number of trials. Reversing this intentional reduction is beyond what an academic center can hope to accomplish, but we can pursue a more modest goal of getting the most out of what’s left, and we can prevent jury trials from disappearing altogether simply because neither judges nor litigators are comfortable with conducting them.
3. I have also concluded that federal judges are the single most likely group able to accomplish this.
  1. First, though most jury trials are conducted in state courts, federal judges have typically been thought-leaders in judicial reform.
  2. Second, none of the reforms we suggest for improving civil jury trials are prohibited by federal law or federal rules.
  3. Third, and most importantly, federal judges are not beholden to anyone for keeping their jobs—they do not have to worry about what the lawyers or litigants want or expect.
4. I have been to dozens of federal and state courthouses around the country, trying to discover best practices band why some judges try a lot more cases than others. One of my first trips was to your courthouse at the invitation of Judge Baylson who I knew as a trial lawyer and who attended our very first national conference in the fall of 2015. On my trip to your courthouse, we probably discussed the first three slides I want to show you.
  1. The next slide shows how that since 1962 the percentage of civil cases disposed of by jury trials in federal courts dropped from 5.5% to .7%. And surprisingly, to me, that the percentage of cases disposed of by bench trials dropped from 6% to .5%, even faster than the decline in jury trials. That statistic is the best rebuttal to the idea that jury trials are more expensive and more unpredictable than bench trials.
  2. The next slide shows that the average number of jury trials per authorized federal judgeship has declined from 10 to 3, and the number of bench trials, from 11 to 1.
  3. This slide shows that the total numbers of jury and bench trials last year in the Eastern District were, respectively, 65 and 42.
  4. And the next slide shows how you compare with other districts in terms of the number of trials per authorized judgeships.
5. We have put on workshops for judges on jury trial innovations and with the help of judges, trial bar organizations and trial law firms, we have organized Jury Improvement Lunches across the country. Tomorrow we hold our 8^th, in Boston, where the idea for the CJP began as a result of a patent infringement case I tried before Judge Young. He showed me how much room there was for improvement of the trials we do have, consulted with me on how to set up the CJP and became our first Judicial Advisor. He will obviously be the star of the show on Wednesday in Boston when 70 lawyers, 6 judges and 3 jurors meet to discuss improving jury trials.
6. In addition to hosting lunches, the CJP is engaged in a broad range of projects that you can find described on our website and in our monthly newsletters. They include operating a website as a resource for judges, academics and lawyers. We have also created a second website named WeThePeopleWeTheJury where those who have served on juries and loved it, can try to convince those who have been summoned not to try to avoid it. The next slide is the card we ask judges to give to jurors when they are dismissed inviting them to our website.
7. We have conducted empirical studies, are planning to provide financial aid and legal defense to jurors, have prepared an amicus brief concerning juries on behalf of law professors, and are trying to educate young lawyers on how to try jury cases.
8. Some of the results of our research have been surprising.
  1. One recent study shows that 80% of the public has no idea that the number of jury trials is even declining. Indeed, that ignorance may be one reason why they are. When those surveyed are told that the right to a jury trial in a civil case is guaranteed by the Constitution, they are unhappy with the trend.
    1. So one thing we can do is to inform the public that public dispute resolution is being marginalized and that jury trials are disappearing.
    2. Another is to teach the public that the right to trial by jury in civil cases was so important to our Founders that they ratified the Constitution only on the condition that an Amendment be added that expressly protected it, and that they insisted upon this in spite of their recognition that jury trials would be more expensive, more uncertain in general and more dangerous in particular to wealthy defendants than bench trials.
  2. Another study we recently commissioned found, to my surprise, that 53% of material B2B contracts filed with the SEC last year did not contain either arbitration or jury waiver clauses. We are in the process of interviewing GC’s of companies who were parties to such contracts and hopefully will be able to confirm that the omission was intentional and that the majority of American companies still have faith in juries.

Today I want to discuss some innovations that you can, right now and at no expense or need for any rule change, start using to make jury trials less expensive and more reliable—or at least perceived as such to the 47% of corporations that have lost faith in trial by jury.
1. When I first began working to save jury trials, one of the first things someone sent me was a short film entitled “Order in the Classroom” produced by the IADC in 1998 as a vivid portrayal of the problems inherent in the jury trial system. Watching that doesn’t give one a lot of faith in the jury’s ability to get it right.
2. Yet we believe that all of the pedagogical problems illustrated in Order in the Classroom can be eliminated by adopting the innovations I am going to advocate today.

Before we get into specifics, let me provide a little history.
1. The state courts in Arizona began experimenting with many of the innovations in the early 90s.
2. In 1998, the ABA established a Task Force that wrote Civil Trial Standards recommending the use of many of these innovations.
3. At the same time, the Arizona Supreme Court authorized the American Bar Foundation researchers to videotape 50 civil jury trials where these innovations might be used. The researchers were also allowed to videotape the deliberations of the juries with the consent of the parties and jurors.
4. In 2005 the American Jury Project of the ABA published Principles for Juries and Jury Trials. The ABA and the American College endorsed these recommendations.
5. The results of the Arizona Jury Project have been written about for the last 15 years and were the subject of a panel discussion at the annual ABA meeting this August.
6. Although all studies have concluded that the innovations improve juror comprehension, recent studies show a very slow adoption rate by courts across the country. Even though virtually none of these innovations are prohibited by rules, most judges are unwilling to experiment with something new unless both counsel agree. I think there are several reasons for this:
  1. First, state court judges who are subject to election, are reluctant to force lawyers to do something new.
  2. Second, judges in the same courthouse often don’t know what their colleagues are doing.
  3. Third, while trial lawyers learn from watching others, the prohibition of cameras in the courtroom means that many judges, particularly new ones, have never seen other judges try lawsuits.
  4. Finally, without empirical research based on questioning the jurors and trial lawyers, judges are unable to learn about how these innovations are perceived by the trial participants.
7. The difficulty in getting judges to sua sponte suggest innovations caused me to develop both pretrial and trial agreements to reduce the expense of discovery and trial and to improve jury comprehension. If judges urged on by Bar groups wouldn’t do things on their own without the consent of the parties, I sought to secure the agreement of opposing counsel to most of the innovations we are discussing. You can find them at a website called TrialByAgreement.com. The Trial Agreements, which contain most of the innovations we will talk about today, are now the joint work product of me and Paul Saunders of Cravath who was formerly chair of the American College.
8. Over this summer, the CJP authored short articles on 9 of the innovations that were published in Law 360. There were a number of improvements that we urge that we did not write articles on. They include:
  1. Eliminating side-bars
  2. Insisting on use of pattern instructions if available
  3. Writing plain English instructions
  4. Use of juror notebooks
  5. Providing each juror a copy of the instructions and verdict form
9. Now let me describe the innovations we wrote about
  1. Limiting the length of trial
    1. The biggest objection to jury trials is that they are too expensive. The easiest way to reduce their expense is to set firm trial dates and to set tight limits on the length of the trial.
    2. The single biggest complaint we hear from jurors is that the trial lasted too long and was too repetitive.
    3. Every lawyer who has participated in a time-limited trial reports that it actually made for a better trial.
    4. Shorter trials mean fewer high caliber jurors get excused for hardship. Without time limits, the most complex cases last the longest and are tried to the least qualified jurors. No wonder corporate executives complain that juries are not composed of their peers.
    5. After getting the input from the parties, the Court should set a firm trial date and the length of the trial, both at the start of discovery. Discovery should be proportional to the time allowed for trial.
    6. Mock trials and all empirical studies of actual trials suggest that the outcome is not affected by the length of the trial.
    7. We have found no rule or decision that limits the trial court’s power to limit the length of civil trials. Even without agreement of the parties, the court should impose time limits
  2. Substantive questionnaires to venire before voir dire
    1. To save time at trial and to provide more information on prospective jurors to counsel, the court should suggest to counsel that they agree on a two-page questionnaire to be completed by prospective jurors before they arrive at the courthouse. The Court should have a standard questionnaire it uses in the event one party wants one but both parties fail to agree to something else.
    2. The completed questionnaires should be made available to counsel for long enough to be able to study them and use them to conduct internet research subject to ethical prohibitions being adopted in various jurisdictions.
    3. The only objections I have heard to the questionnaire come from judges who express concerns for jury privacy. In a criminal case, where a juror might be subject to physical threats, I can understand the concern. But not in the usual civil case. After all, jurors become judicial officers and public figures during the brief time they serve. Their privacy can be protected by ordering counsel not to disclose their identities or their questionnaire answers to others.
  3. Full opening statements before voir dire
    1. This practice has been used and endorsed by Judge Tom Marten of the District of Kansas
    2. In a recent trial we submitted questionnaires to the members of the venire who were not selected and to the lawyers representing both sides. The potential jurors did not think their time was wasted and enjoyed hearing more about the case and the lawyers thought this did not lengthen the trial and made for a more revealing voir dire.
  4. Attorney Participation in Voir Dire
    1. About 5 years ago, someone estimated that 30% of the federal judges allowed limited voir dire by the attorney. I suspect that percentage is larger today.
    2. I have been before a number of judges who have conducted the voir dire better than I could, but sometimes you run into someone who does a perfunctory job that leaves you and your client not comfortable with the jury selected because of ignorance about their biases.
    3. I think that 30 minutes per side is enough to restore confidence in the fairness of trial by jury.
  5. Substantive Preliminary Instructions on the Elements of the Claims and Defenses
    1. It makes sense that instructions on how to do something should be received before you do it.
    2. The usual argument against is that when the trial begins no one knows what issues will remain live at the end of the evidence and a lot of time would be wasted crafting unnecessary instructions.
    3. The response is that preliminary instructions that become irrelevant are not repeated at the end of the case and that hard work on the front end makes for a better trial. Besides, we tell young lawyers that they should prepare instructions before they start discovery.
  6. Jury-posed questions
    1. We have listened to the suggestions of hundreds of jurors voiced on our website WeThePeopleWeTheJury, or at Jury Improvement Lunches or in response to post-service questionnaire administered by trial judges. The single most popular innovation is to allow them to ask questions of witnesses.
    2. This practice is nowhere prohibited and increasingly authorized. The most common method is for each juror to be given a blank piece of paper on which she may write questions. The papers are collected at the end of a witness’ testimony before the witness leaves the stand. If any contain a question, the judge shows it to the lawyers at the bench and, if there is no objection, asks the lawyer who called the witness to ask the questions. Opposing counsel may cross.
    3. In my experience, the questions are rarely objectionable and usually quite insightful. Little time is wasted. Jurors report that it keeps them engaged and awake.
    4. I have heard some judges suggest that it may provide the lawyers too much information on how the jury is leaning. My response is what’s wrong with that?
  7. Interim statements by counsel
    1. In a trial where each side is given 15 hours, the court could allow each side to use up to 5% of its time or 45 minutes to offer explanations to the jury immediately before or after examining any witness. No such explanation could last more than 5 minutes.
    2. This allows the lawyers to keep the jurors awake, engaged and more informed. Jurors we have asked, suggest it would be helpful.
    3. I have never been able to get the other side to agree to this, perhaps because whenever I suggest it, they suspect that I have some special experience or expertise at doing it. If this practice is to gain traction, it’s because judges have the courage to experiment with it.
  8. Allowing the jurors to discuss the evidence when they are together prior to final deliberations
    1. Several states allow this and jurors seem to like it, since there is always down time when the jurors are together in the jury room.
    2. It is controversial because defense lawyers say it causes jurors to make up their mind before they have heard all the evidence.
    3. Still, the Arizona Jury Project, which allowed the videotaping of jury deliberations in over 50 civil trials, found that the jurors followed the court’s instructions to not make up their minds or deliberate until the end of the trial.
  9. Requiring expert witnesses to testify back-to-back
    1. In Australia, they have a practice called hot-tubbing where the expert are on the stand at the same time. But that’s for bench trials.
    2. A modification we recommend for jury trials is ordering the testimony so that the jury can readily compare and evaluate the experts’ opinions.
  10. Apart from trial innovations, you obviously can play a big role in training young lawyers how to try cases.
    1. More than 15 judges around the country have adopted some version of the Young Lawyer Rule.
    2. Judges can make sure that young lawyers have an opportunity to try trial-ready pro se cases.
    3. They can also recruit experienced trial lawyers to mentor those who lack partners or co-counsel with trial experience.