Saving the Civil Jury Trial

September 2008
By Judge Janice Wilson, Multnomah County Circuit Court

(A version of this column appeared in the Willamette Lawyer. A longer version is available and the author is eager to discuss this subject with anyone who shares her concerns. Contact her at 503.988.3069 or janice.r.wilson@ojd.state.or.us.)

The civil jury trial may be disappearing. And every judge and lawyer who cares should move beyond handwringing to take action.

Most cases will settle, as they always have. But trials are needed to make mediation work. Whether parties settle is driven, at least in part, by asking what will happen if they don't. Many mediators use verdict reports to advise the parties of the outcome they should expect if they cannot settle.

Some cases cannot and should not be settled. Sometimes justice means a defendant who is not liable should not have to pay, even "a penny for tribute." Sometimes, justice means a plaintiff should not take less than full compensation for his or her injuries.

Juries tell us what a "reasonable person" would do - and that standard changes. Jurors tell us how our community values a particular injury. Sometimes the parties need to try a handful of cases to learn how a jury is likely to look at the facts so that the other cases can be settled.

People say the civil jury trial is dying because it is too expensive and takes too long. Why?

We need to look to ourselves. Increasingly, lawyers know only how to do discovery and motions. Many lawyers conduct these preliminary stages of litigation in a ritualistic way, detached from what is needed to evaluate the case or prepare for trial. The result is needless expense and delay.

Ironically, arbitration is now as protracted and expensive as trial. The cause is the same - lawyers don't know how to do anything else. Many lawyers do not possess the courtroom experience needed to advise their clients on how to evaluate the risks of a trial. Worse, there are lawyers who pressure their clients to settle because the lawyer, consciously or unconsciously, is afraid to go to trial.

Lawyers used to try many cases with few motions and little formal discovery. They got to trial quickly and without exorbitant expense to the client. Why aren't lawyers advising their clients that they don't have to file every conceivable motion, take a deposition of every person in sight, or request every document they can imagine?

Presiding Judge Maurer has formed a committee to look at the vanishing jury trial. We are exploring, among other things, how judges may be contributing to the rising cost and delays in resolution through trial. Other groups are looking at ways to get newer lawyers experience in front of juries.

Another essential step is for lawyers to focus on efficiency and consider the true need for much of their discovery and motion practice. Lawyers must explain to their clients why excessive motion and discovery practice may not be in their best interest. If we work together, we can reverse this trend of lawyering the jury trial to death.