‘Does the public view that in a negative way?’
By Annie Butterworth Jones
Over a span of 30 years, jury trials have taken a noticeable nosedive, and the decrease has garnered the attention of Florida attorneys.
In January, the Committee to Study the Decline in Jury Trials was commissioned by Bar President Mayanne Downs, and the committee’s inaugural planning session was held at this year’s Midyear Meeting in Orlando on September 23.
From 1962 to 2002, federal civil trials decreased by nearly 10 percent, and federal criminal trials experienced an even greater decrease. Those numbers, Downs reminded committee members at their meeting, should raise some serious questions about the future of jury trials and the legal profession as a whole.
“It’s not just that those of us who are in trial practice love jury trials, and that we feel so alive when we are fortunate to take part in one, but rather, there are numerous things that flow from that,” said Downs, mentioning the impact fewer trials has for women and minority lawyers.
“My point is not that it’s about me, but rather it’s the kind of subtle things you wouldn’t think about if you think about the decline of jury trials: their dramatic criminal impact, their evidentiary issues, and the fact that no settled case ever generated law in the appellate level.”
Those concerns were reiterated throughout the committee’s first meeting, which focused largely on the group’s mission statement, issued by Downs and the Bar Board of Governors earlier this year.
Co-chair Jay Cohen read portions of the statement aloud: “Our mission statement … is to research and analyze the trend of declining jury trials, both state and federal, civil and criminal. We’re to determine the reasons for the decline and the impact that it has upon the justice system and the citizens on any issue of concern. And, if appropriate, which actions, if any, do we take as The Florida Bar?”
Although reasons for the decline are mostly positive — most members cited an increase in alternative dispute resolutions, including arbitrations and mediations — members of the committee shared their concerns with several resulting issues: a lack of trial opportunities for young lawyers, the impact on the Bar’s certification program, membership in ABOTA, and employment for judges and court staff.
“We’re about to be 90,000 Florida Bar lawyers, the second largest bar in the U.S. How is all this going to impact the young lawyer?” said Cohen. “Dispositions are up, and yet the number of cases that are disposed of via jury trials are down and down substantially. There are different reasons why there are fewer trials, or fewer smaller trials in the criminal division than the civil division, but it’s happening in both divisions.”
According to the National Center for State Courts, the decline in civil trials represents a change in judicial management, a focus from presiding over trials to managing disputes. If that’s the case, said committee member Paul Regensdorf, maybe the decline in trials isn’t such a bad thing.
“Candidly, I am not concerned as much with us as lawyers. You know, ‘Are we not going to be able to certify them? Are we not going to be able to become members of ABOTA because of the reduced number of trials?’
“If that is the price we pay for a more efficient system, then that’s not a great concern. What would be a concern is if there was serious evidence that the public is losing confidence in the jury system because there are fewer trials. I can’t think that it’s extremely likely that that’s happening.”
In fact, a show of hands around the room demonstrated that nearly all committee members present had been unaware of the substantial reduction in jury trials over the past 10 years until reading the recent data and being selected for the panel.
The question then, Regensdorf said, shouldn’t be how the issue is affecting attorneys.
“We need to ask: Does the public view that in a negative way?”
The jury trial panel plans to meet at the next board meeting and begin tackling issues brought up by members, as well as the tasks assigned in the committee’s mission statement. The goal is to have findings and recommendations to present to the board in 2011.
“At some point,” said David Rothman, committee co-chair, “we’re going to have to cut off the discussion and keep moving along.”