For some time now, judges and lawyers have lamented that the number of civil cases that actually get to trial has been perpetually shrinking. As noted in a June 18 post in the Blog of Legal Times, fewer than one percent of federal cases filed now go to a jury trial, and anecdotal evidence suggests that the prevalence of jury trials in state courts is declining as well.
Commentators at a recent convention of the American Constitution Society speculated that increased use of arbitration and the complexities of selecting a jury panel could be factors that are making the civil jury trial an endangered animal in the courts.
But if you ask clients, there is no mystery. The fastest growing part of in-house legal budgets has been in the litigation and compliance arenas. Compliance cost increases have been brought about by an explosion in regulation – no mystery there.
Litigation cost increases are related to an explosion in data and related discovery issues, as well as the never-ending expansion of the process of “preparing” for trial rather than going to trial. Clients are frankly tired of waiting in line for years to have their day in court while witnesses die, memories fade and ongoing business necessities push past the litigation of any particular case in order of priority.
Thus, clients will continue to flock to arbitration and alternative dispute resolution, and they will continue to put more effort into resolving controversies without aid of the courts as long as the cost of getting to trial is disproportionate to the amounts at stake and the benefits of having a trial.
Trial lawyers can win more business and get to trial more often if they can do what businesses do – figure out how to shrink costs while improving quality and delivery speed. The adoption of automated, predictive coding (See for example: DiscoverReady’s i-Decision) can help to dramatically reduce discovery costs and delays, and the utilization of Six Sigma business efficiency principles for law (See for example: Legal Lean Sigma) can help to streamline the entire process of getting to trial.
When more trial lawyers and courts figure out how to deliver to litigants their “day in court” with efficiency, speed and results, then clients will take a fresh look at the jury trial as a method of getting justice. Some are already there, and they are prospering. Inevitably, more will follow.
NOTE: There are many providers that offer predictive coding and process improvement services. I have listed only 2 examples, one of which is a former client, and the other an entity having a principal with whom I am personally acquainted.