Americans love a good trial — in theory. Think of every episode of Law & Order, movies like A Few Good Men or To Kill a Mockingbird, or the Jodi Arias coverage on cable. But in real life, surveys put lawyers at or near the top of the list of least respected professionals.
Thanks to hostile legislatures across the country, the number of civil actions is collapsing. The assault has come on many fronts — liability limits and caps on awards have made it impractical for many types of cases to go to court.
And thanks to mandatory arbitration clauses and other binding contractual language, many other valid cases are never allowed to go in front of a jury. In particular, the number of cases in medical malpractice, product liability and other areas of injury law has been falling over the past decade, even collapsing in some places.
Let’s take a look at what is happening in federal courts. (You can find all of the annual Federal Court data here.) While the number of civil trial has fallen about 10 percent in the past decade, many types of litigation are collapsing. From 2002 to the end of last year, there has been a sharp decline in many key types of civil suits in U.S. District Courts.
Trends are the same at the state level.
For example, in my home state of Wisconsin, the number of juvenile, criminal and family law cases have held steady or increased while the personal injury and civil cases have almost dried up. According to the most recent statistics from the Wisconsin Court System, the number of cases in medical malpractice, product liability and other areas of injury law have nearly vanished.
That is a direct result of legislation to cap awards and damages. Because the discovery costs and expenses in lining up witnesses can cost tens of thousands of dollars before a suit even gets started, people are less likely to launch a civil suit if there is no hope they will recoup those expenses.
In addition, legislators are continually adding new roadblocks for litigants- like Wisconsin’s new limits on the ability of lawyers to obtain internal records from nursing homes, making it nearly impossible to prove negligence in wrongful death suits.
When jury trial disappears, everybody loses.
The disappearing trial does matter. Arbitration is often secret and the findings are never made public. Justice is not served behind closed doors.
As federal district court judge William Dwyer put it, “The jury trial is the canary in the mineshaft. If it goes, our people lose their inherited right to do justice in court, and other democratic institutions will lose breath too.”
Technology is to blame for some of the problems.
As an eDiscovery vendor, we know that too much time, expense, and effort is often tied up in pre-trial discovery that going to court often becomes impractical. That’s largely because the volume of discoverable data is so huge that it is easy for some lawyers to game the systems.
“The process of discovery and the pretrial motion practice that accompanies it can become an end in itself,” writes Robert Burns in What Will We Lose if the Trial Vanishes? “And it can become endless, as fewer lawyers have a sense of when they have learned enough to try the case effectively.”
Technology is often named as one factor in the demise of the jury trial, but it is also a solution. The key is to make the entire process of litigation cost-effective and fair. Lawyers have to learn to take advantage of digital evidence to make a case effectively, rather than letting digital data overwhelm their legal team.
To start, every small or solo law firm attorney should familiarize themselves with the Sedona Conference’s Cooperation Proclamation. The document promotes a less adversarial approach to discovery that’s not only practical, but has been endorsed by judges across the country.
And as lawyers increasingly adopt cost saving, cloud-based technology, at least one undue burden can be alleviated. To learn more, download our free eDiscovery primer for small and solo law firms, eDiscovery: Leveling the Playing Field.