The Trial Lawyer Summer 2018 - Page 59

RESURRECTION

OF THE AMERICAN TRIAL LAWYER

By Robert T . Eglet
The article I wrote last year for the Summer 2017 issue — “ Death of the American Trial Lawyer ” — resulted in a surprising yet encouraging response from readers , both locally and across the country . I have received hundreds of emails from readers requesting more information about the danger that the disappearance of the civil jury trial poses to our justice system . More importantly , readers are asking if anything can be done to reverse this alarming trend .
Death Of The American Trial Lawyer
In “ Death of the American Trial Lawyer ,” I briefly discussed the importance of the civil jury trial to the American justice system and documented the steep decline in the ratio and absolute number of civil cases resolved by jury trial over the past 80 years . In the 1930s , 20 percent of all civil cases in both Nevada and in the federal courts were resolved by jury trial . Today , the average number of civil cases concluded by a jury ’ s verdict is a quarter of a percent , and in some states it is effectively zero percent . I outlined the major causes of this decline as being Alternative Dispute Resolution ( ADR ), or what many legal scholars refer to as the privatization of the civil justice system ; the exponential rise of litigation costs including out of control , and often unnecessary , pretrial discovery prompted by billable hour requirements ; the adherence to a judicial philosophy that case settlement is better than trial , no matter the situation ; the rise of case dismissals via summary judgment ; federal pre-emption that guts an otherwise viable action ; and , the biggest enemy of the American consumer : tort reform .
I suggested that one foreboding consequence of the threat of civil jury trial extinction is that experienced trial lawyers are quickly becoming relics of the past . The drastic reduction of civil jury trials , both in ratio and absolute number , has lead to a lack of understanding of the true settlement value of most cases . This , in turn , has led to a majority of cases settling for less than their true value , and resulting in injured victims losing hundreds of millions of dollars annually in lost compensation to which they are legally entitled . Further , the rapid decline of jury trials negatively effects our democratic form of government . The drastic reduction of civil jury trials ensures that a much smaller segment of the population has the opportunity to participate in jury service . Jury service is the only opportunity most citizens have to directly effect government decisions .
In this article , I outline generally the history and importance of the civil jury trial to Americans , and identify some solutions to revive it .
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