Survey Finds Tort Reforms Lead To Less Jury Trials; Jury Trials Still Preferred Over Arbitration

An article appearing on December 11, 2020 in the Louisiana Law Review entitled “Reasons for the Disappearing Jury Trial: Perspective from Attorneys and Judges” that reported on a survey of 1,460 attorneys and judges (173 judges (70% state and 30% federal) and 1,282 attorneys (63% who handle primarily civil cases, 33% who handle primarily criminal cases, and 4% who did not indicate whether they primarily handle civil or criminal cases)) stated: “The number of jury trials has dropped so dramatically in recent years in both federal and state courts that the jury trial is an exceptional rather than a commonplace outcome. Although civil case filings in federal courts, where the data are most reliable, have increased fourfold since the early 1960s, the percentage of civil cases disposed of by jury trial decreased from approximately 5.5% in 1962 to 1.2% by 2002 and to 0.8% by 2013.”

The authors stated, “Some observers have also attributed the drop in civil jury trials to a variety of tort reform initiatives. Statutory changes such as caps on damage awards, especially for general compensatory damages like pain and suffering and for punitive damages, have reduced the ability of litigants and their attorneys to recover substantial awards of compensatory and punitive damages. Such limits potentially encourage early settlement or may even lead potential claimants to forgo pursuing their claims entirely. Many of these initiatives received favorable receptions in state and federal legislatures in response to sophisticated public relations campaigns by organizations such as the U.S. Chamber of Commerce, the American Tort Reform Association, the American Legislative Exchange Commission, and other pro-business entities that claimed the urgent need to curb unpredictable, irrational, and excessive jury verdicts. There is little support for that claim …”

The surveyors also found, “each group of attorney respondents perceived jury trials as less fair than mediation but fairer than arbitration—and about as fair on average as bench trials. There was variability among the rater groups, however. In contrast to the other groups, judges did not perceive jury trials as fairer than arbitration. Moreover, whereas judges rated bench trials as relatively fairer than jury trials, the attorney groups tended to rate jury trials as fairer than bench trials … although the respondents ranked jury trials as the least predictable, slowest, and least cost-effective procedure, attorneys on average viewed jury trials as second only to mediation as the fairest form of case resolution. All respondent groups, both judges and attorneys, on average viewed jury trials as second only to mediation as the most preferred form of case resolution … overall preference for jury trials appears to be driven by concerns about procedural and distributive justice, such as fairness and predictability, and not by practical concerns, such as speed and cost.”

“The results of the survey to this point suggest that attorneys are competent and confident about going to trial, and that attorneys perceive juries as fair and prefer them overall, except when compared to mediation in civil cases. The results also suggest that cost and perceived litigant preferences lead cases away from being resolved by juries … 79.1% of civil respondents and 87.7% of criminal respondents expressed agreement that jury trials were worth the costs associated with them.”

The article concluded, in part: “The results from this survey reveal substantial goodwill toward jury trials from judges and attorneys, yet jury trial rates have plummeted. If efforts are not made to reverse this trend, then the question becomes: What are we losing? Not only are defendants in criminal cases and parties in civil cases losing their day in court, with its procedural protections and access to the decisions of disinterested citizens, but a system with fewer trials provides less citizen feedback on the justice system.”

Source

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