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

By Susman, Stephen D.; Melsheimer, Thomas M. | The Review of Litigation, Summer 2013 | Go to article overview

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


Susman, Stephen D., Melsheimer, Thomas M., The Review of Litigation


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.