The Disappearing Jury Trial

Jury trials are an endangered species. The number of federal tort trials has plummeted nearly 80 percent since the mid-1980s, and state courts have seen a similar drop. While there's a lot of speculation about the trend, no one knows exactly why it's happening. Panelists at the U.S. Chamber of Commerce's legal reform summit a few weeks ago posited that the threat of punitive damages forced defendants to settle rather than go to trial. Or that maybe it was too many invasive discovery requests from plaintiffs' lawyers. Or magnet jurisdictions!

Plaintiffs' lawyers have their own (often equally flimsy) theories. The latest one comes via Daubert on the Web in a paper by New Orleans lawyer Allan Kanner. Kanner blames the U.S. Supreme Court's  1993 decision in Daubert v. Merrell Dow, which gave judges vastly more power to vet scientific evidence.

I'm skeptical, given that criminal trials are also disappearing even though Daubert isn't used as much in those cases. Still, Kanner's paper has some interesting tidbits about the way judges are using Daubert to throw out toxic tort litigation as well as their dubious understanding of science. If you can stay awake through the first 30 pages of throat-clearing Supreme Court history, the specific case examples are worth reading...

Comments

[Aaron]

Some time ago, I worked for a CLE organization which offered week-long trial skills training workshops. There was pressure to make the program shorter, as associate salaries left firms wanting them in the office performing billable work, and the number of lawyers attending was decreasing each year. Deposition skills workshops continued to draw, and facilitation training proved to be a huge draw. Some firms at the time were talking about renaming their "litigation departments" to "dispute resolution" departments. And we were already long past the day when insurance companies would foot the bill for de facto associate training, paying the fees of an associate who more or less would sit through a trial to gain experience.

I suspect that part of the reason for a diminishing number of trials is that there is a diminishing number of good trial lawyers. 'Tort reform' helps the defense resolve a lot of cases prior to trial, through motion practice, but leaves fewer and fewer opportunities for a defense lawyer to get significant experience in front of a jury.