by Michael K. Hurst
The rule of law may be the most important benefit of living in this great Country. But the right to trial by jury in civil matters is close behind, and serves as a safeguard to our rights. The Founders of the United States contemplated that our clients’ important disputes were not to be decided by kings. In fact, in 1789, James Madison said:
“Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”
Now, so few civil cases go to trial that lawyers in “trial sections” of firms make partner or even section head without ever having tried a jury trial. Statistically, according to Richard Jolly with the Civil Jury Project—a program championed by renowned trial lawyer Steve Susman—juries today determine fewer cases than at any other point in the nation’s history. For instance, in 1962, the year when most federal judicial statistics became available, federal juries decided 5.5 percent of civil cases, whereas today that number hovers around 0.76 percent. Most state courts have experienced a similar decline.
Why do civil jury trials matter, and why should we care? As Jolly points out: “Juries allow lay citizens to check judges’ work for corruption, state aggrandizement, and application of grounded normative standards. Moreover, jury service offers one of the few opportunities for citizens to be directly involved in the administration of law. As Alexander de Tocqueville described, it is ‘a free school’ that ‘instill[s] some of the habits of the judicial mind into every citizen.’ Perhaps unsurprisingly then, trial by jury is the only right to appear by name in all three of the nation’s founding documents: the Declaration of Independence, the Constitution, and the Bill of Rights.”
What can we do? Not to be a downer, but saving the civil jury will be difficult. The future of the civil jury trial may depend upon trial and appellate courts constricting their reading of the Arbitration Acts, the summary judgment standards and recent Texas rules TCRP 91a and TCPA. The Civil Jury Project has taken a different approach. It is trying to bring attention to the decline and develop innovative strategies to make jury trials a preferable mode of dispute resolution. This means adopting techniques that make jury trials cheaper, quicker, and more accurate.
The Dallas Bar Association, in partnership with the Dallas Chapter of the American Board of Trial Advocates, the Dallas Trial Lawyers Association, and the Texas Association of Defense Counsel, is doing what it can to tackle this disturbing trend. To address the vanishing civil jury trial, Judge Martin Hoffman and Aaron Tobin have led our creation of 4 modules.
The first module was held on March 23, when Judge Jim Jordan provided an anecdotal history of the civil jury system, followed by Shonn Brown and Judge Ken Molberg speaking to the continuing threats to the civil jury trial and what is going to happen if the trend is not reversed. In the words of Judge Molberg: “The right to trial by jury has a constitutional identity. And the trial lawyer is essential to its promise. Over the last few decades we have seen a piecemeal destruction of this right. And with that has come an attenuation of the trial bar.”
On May 1, for Module 2, during juror appreciation week, the DBA will again host the juror appreciation program with Mr. Jolly and Steve Susman himself. Judges Hoffman, Barbara M.G. Lynn, Craig Smith, and Sam Lindsay will participate. Each judge has invited jurors who served in their courts to participate. The module will focus on how to improve the jury process. A client will even provide remarks about how thankful she is to have had her day in court. Judge Bonnie Goldstein, Presiding Judge of the George Allen Central Jury Room, continues to help in this effort, along with Judge Dominique Collins and Lori Ann Bodino, by ensuring that jurors are greeted, served breakfast, and shown the renovations to the central jury room.
Module 3, which will be held in September 2018 with a panel of trial lawyers, along with federal and state judges moderated by Judge Hoffman. The panel will address innovations to improve, and perhaps save, the civil jury system. Module 4 in November 2018 will showcase a debate about why the modern civil jury trial should or should not be preserved.
Now, when this trend hopefully reverses, and young “trial lawyers” have opportunities to try jury trials, how will they be prepared? Inspired by Judge Reed O’Connor, and with prodigious efforts from DAYL President Jennifer Ryback and Executive Director Cherie Harris, the DBA and DAYL have created The Second Chair Program, where young civil litigators get opportunities to try jury trials with seasoned criminal defense lawyers. In the first month of the Program, five young civil litigators had the opportunity to sit second chair with seasoned criminal defense lawyers.
John Gioffredi took Zirwa Sheikh to a DWI trial in late February. Zirwa said “I learned more in two days than I could have ever imagined. John made the experience so easy to follow and was really committed to helping me understand everything. I intend to participate again because what I have heard is so valuable.” John said “Zirwa and I both benefitted from this experience.” Russell Wilson took Matt Jaynes to a capital murder trial. Matt said, “Watching the development of voir dire, and the opening statements, having talked to Russell beforehand about the trial strategy and watching those phases weave together has been a tremendous learning experience.”
The civil jury trial is indeed a national treasure. Our profession, our clients, and our society need this right as a check and balance so that disputes are decided in the most just way possible—as contemplated by our Founders. Writing and presenting modules about saving the civil jury trial is not going to cause arbitration, summary judgment standards, and escalating billable hour rates to suddenly reverse course, but, as lawyers and as leaders, we can perpetuate the discussion before it is too late. I look forward to visiting with you.