Trial by Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases

Article excerpt

I. INTRODUCTION....................................... 431

II. WHY SENSIBLE PRACTICES HAVE FAILED TO TAKE ROOT UNIFORMLY................................................ 437

III. PRACTICES FOR IMPROVING JURY TRIALS............... 441

A. Hard Time Limits................................................................... 441

B. Juror Questions...................................................................... 448

C. Interim Arguments.................................................................. 456

D. Use of Preliminary Substantive Jury Instructions.................. 457

E. Juror Discussion of Evidence Before the Conclusion of Trial...................................................................................................... 459

F. Trial by Agreement........................................................................ 462

IV. CONCLUSION 465

I. INTRODUCTION

For many years, trial lawyers and judges have been decrying attacks on the jury system.1 These attacks have taken many forms and the participants have come from all branches of government and the citizenry. Some of the attacks are quite explicit. Legislatures can eliminate or make more difficult the pursuit of certain claims, such as medical malpractice. This has sometimes been called "tort reform" and dates back several decades,3 but the causes of action affected have not been limited to traditional torts. Courts can make it easier to dismiss claims by (1) heightening pleading requirements prior to discovery, (2) relaxing standards for granting summary judgment prior to a jury trial, and (3) making it impossible for the plaintiff to prevail by precluding expert testimony or refusing to certify class actions. Potential litigants can, by written contract, force future disputes into binding arbitration, where the role of the court is limited, with a few exceptions.5 Potential jurors too have had a hand in "attacks" on the system by refusing to show up for jury service or by aggressively seeking ways to avoid such service.6

Other attacks on the jury system are less explicit but also play a role in what several commentators have called "the vanishing jury trial."7 Judges, who are understandably interested in managing congested dockets in a court system that is often resource-strapped, encourage alternative forms of resolution outside the courtroom, such as mediation.8 In the Old West, the iconic term "hanging judge" was used to describe a judge with a reputation for harsh sentencing.9 Today, trial lawyers may often encounter a "settlement judge"-a judge who is willing to cajole, exhort, or even intimidate the parties into a settlement.10

Lawyers have also played a role in placing the jury system under attack.11 Either because of a lack of experience or a lack of appropriate economic incentives to be efficient, lawyers have driven up the cost of litigation by unnecessary motion practice, unneeded discovery and a failure to seek cost-saving agreements and protocols. These practices all make the ultimate prospect of case resolution by a jury more expensive, more remote in time, and, consequently, less likely to occur.

The inefficiencies practiced by lawyers litigating cases before trial are not made harmless if the case actually makes it in front of a jury. In that event, those same inefficiencies will manifest themselves in an excessive use of exhibits, unnecessarily lengthy deposition testimony, and a bloated interrogation process that, in our experience, leads to the single most repeated comment by jurors after a trial has concluded: "There was too much repetition."12

Though we mourn the near-extinction of the jury trial, we do not address here the broader issue of ever increasing judicial and legislatives efforts to curtail jury trials, or the efforts by a broad segment of corporate America to keep disputes with their customers and employees out of court altogether through the use of boilerplate arbitration clauses. …