In a recent article appearing in the Harvard Law Record, the title of the article says it all: “Civil Trials Are Fast Becoming Extinct.” Civil jury trials and bench trials have seen a dramatic decline since 1986. This trend has followed in both state and federal courts and includes criminal cases as well.
The article, written by Frank J. Riccio D.M.D., J.D., wrote that there are no reasons why civil jury trials have become so infrequent. Some say that the Rules of Civil Procedure have encouraged lawyers and clients to engage in pretrial discovery in attempts to settle cases rather than prepare cases for trial. The trend began in the late 1980s when liberal discovery rules went into effect, although the decline began years before. Nothing particular happened that made trying jury cases more expensive than in the past.
The jury trial decline in federal courts coincides with the Supreme Court’s 1986 decisions instructing trial courts to grant summary judgments unless the plaintiff proves the probability of the allegations.
It was said that the obstacles to trials were the products of “lawsuit abuse” and the so-called “tort reform, securities law reform, antitrust reform, class action reform and patent reform.”
Dr. Riccio said judicial obstacles erected by judges who have never tried jury cases were designed to protect businesses from having to confront juries and include enhanced pleading, summary judgment motions, mandatory mediations, Daubert motions, class certification hearings and motions in limine practice.
The article stated that judges find it difficult when lawyers are sometimes willing to go to trial when cases are ripe for it. That seems to imply that it’s the judges who are not willing or able to handle jury trials. Apparently there are many trial judges who are still uncomfortable trying cases to juries.
“Finally, the Supreme Court’s affection for arbitration as a form of private dispute resolution makes it an obvious alternative to any form of public trial.”
In the Law Division of the Circuit Court of Cook County, there are assigned trial judges who are on rotation to try cases every single day. From this lawyer’s point of view, jury trials remain vibrant and active in Cook County. The Circuit Court of Cook County is the country’s largest functioning court system. By my observations it doesn’t seem like there is any shortage of ongoing jury trials or a lack of trial judges. At the same time, there have been put in place mandatory arbitration provisions and other pretrial practices that make the possibility of settlement before trial not just more practicable but possible. There is nothing wrong with settling a case when the facts, circumstances and the law prescribe it.
The trend of fewer jury trials nationally has been discussed for years. In the federal court system it does seem that many civil cases are settled after discovery but before the start of a jury trial. There are many types of civil cases. The medical malpractice cases that I handle are taken at the onset with an eye toward a jury trial. Even in the obvious case of negligence, most cases are not settled in the early stages, but only after all of the experts’ depositions and other fact discovery have been completed. At that point, the possibility of settlement comes up for discussion. I tell all of my clients in those cases to be focused on an eventual jury trial rather than to believe that the case will be resolved quickly.
Robert Kreisman has been practicing civil trial practice, handling catastrophic injury cases, commercial litigation, probate litigation and medical malpractice cases for individuals, families and businesses for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Naperville, Wheaton, Elk Grove Village, Arlington Heights, Orland Park, Worth, Bridgeview, Maywood, Markham, Homewood, Highwood, Highland Park, Glenview, Mount Prospect, Chicago (Rogers Park, Jefferson Park, Jackson Park, Wicker Park, Bucktown, Chinatown, Little Italy, Greek Town, Austin, Englewood, Hyde Park), Lincolnshire and Rosemont, Ill.
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