A Unique American Tradition
Jury trials in civil matters are a uniquely American affair. While once the norm in Great Britain and the Commonwealth, most countries that allowed for jury trials for civil litigation have abolished the practice. As a result, in almost every other country on Earth, your civil case will be heard by a judge, not a jury made of laypeople in your community.
People abroad who may otherwise be called for jury duty are surely glad that the pool of cases they might have to hear is dramatically more limited than in the U.S. So why hasn’t the United States followed suit in getting rid of jury trials for civil matters? It’s not just that the right to a civil jury trial is enshrined in the Seventh Amendment and the U.S. Constitution is next to impossible to amend; the Constitutional right to a jury trial extends only to federal court cases. Almost all states protect the right to a civil jury trial for state court cases in their constitutions, which are generally speaking, much easier to amend.
The Impact of Jury Trials
While most civil cases could theoretically be resolved by a jury, less than 1% of cases filed ever go to a jury because of the high rate of settlement. Settlement is often the right choice – if the parties can agree to a mutually acceptable outcome, there is no need to undertake the burden and expense of preparing for and trying the case, and no need to take the risk that the jury will return a verdict that is outside the expected valuation of the case. But oftentimes, lawyers are too quick to urge settlement a case on unfavorable terms for their client out of fear of what a jury will do.
Why is this? Most lawyers just don’t have much (if any) experience trying a case to a jury. Ask a high-profile partner at a prestigious national law firm about her trial experiences and she’ll likely rattle off a number of arbitrations (in front of a private arbitrator) and perhaps a few bench trials (i.e., trials in front of a judge, not a jury). Exceedingly few have any experience actually making their clients’ cases to a group of 12 ordinary citizens drawn from the community, rather than a legal expert. As a result, most lawyers – who might be outstanding at arguing their case to other lawyers – haven’t developed the skills necessary to successfully persuade non-lawyers. Make no mistake, this is a very different (and in many ways, more challenging task).
Presenting a case to a jury requires translating complex legal issues and a tangle of interrelated facts into a compelling narrative. That narrative must be readily understood by people who aren’t lawyers and have no vested interest in the outcome of your case. This is a skill that can only be developed through extensive experience. Without that experience, the entire process of a jury trial (while it looks similar to a bench trial) can seem like a black box to the attorneys. They have no idea if the jury will be receptive to their arguments or understand the evidence presented. Indeed, lawyers with little trial experience, when interviewing jurors after the trial, are often crestfallen to hear that the jury didn’t really understand their arguments, or that they were fixated on evidence the lawyer thought was unimportant. These sorts of war stories circulate widely among litigators, who wrongly take from them the lesson that jurors are irrational (they aren’t). Rather than risk a terrible outcome for a client, many lawyers will get down to the wire before trial and blink. The result is a settlement on the courthouse steps that the client might be less than thrilled with, especially after all of the effort that went into discovery and preparing the case.
Trial Lawyers Make the Difference
Great trial lawyers know how to turn the evidence collected in discovery into a trial presentation the jury will not only understand, but find convincing. They know how to make sure the jury is properly instructed on the law, to avoid juror confusion and the possibility of reversal on appeal. They argue persuasively, not just to other lawyers, but to laypeople. And because they are not afraid to try a case and put the verdict in the jury’s hands, they actually achieve far better settlement outcomes for their clients.
Conclusion
We have tried hundreds of cases before juries, in criminal and civil matters, in state and federal courts. We know that the juries can bring vital common sense and a sense of justice to the process of dispute resolution. We’ve spoke to hundreds of jurors after their service who found the process of working together with their fellow citizens from all walks of life to get to the right outcome to be a profound experience they were glad to take part in (no matter how much they wanted out of jury duty at the start). That’s why we have great faith in the jury trial as a civic institution. This faith sets us apart from other lawyers – we’re not afraid of jury trials. We know the courtroom is the one place where you can’t just get away with bluster and bluffing; you have to have evidence to back up what you’re saying. And if you try to fast talk a jury or confuse them with nonsense, you’re likely to lose.
We try cases in front of juries and we win. That’s the experience that will get you the best possible result with your toughest problem.