By Mark D. Killian
Managing Editor

The dramatic decline in the use of jury trials to resolve civil disputes concerns U.S. District Judge Gregory Presnell, because jury trials are at the very foundation of American participatory democracy.

“It is a political institution that is critical of the way we think, the way we act, and what we think about ourselves,” Judge Presnell told those attending the Federal Court Practice Committee’s Midyear Meeting in Orlando.

Presnell said when he began practicing law in the late 1960s, 11 percent of federal civil filings wound up in jury trials. In 2009, that number had dipped to 1.2 percent.

“That is a tremendous decline, particularly when you think about the increase in the population, the increase in the number of lawyers, and the increase in filings,” said Presnell, noting that in the U.S. Middle District of Florida the decline has been even more dramatic — only 0.8 percent of civil filings were resolved by a jury last year.

In explaining why jury trials are so important, Judge Presnell quoted Alexis 1830s : “The jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties. I think that the practical intelligence and political good sense of Americans are mainly attributable to the long use that they have made of the jury in civil causes.”

That, Presnell said, is why it is important to do everything possible to preserve civil jury trials in this country.

“Where in a government this complex — and with the difficulties and issues and problems — do you have a system where six or 12 people sit down and make a critical decision affecting people’s lives and fortunes?” Presnell said. “That’s what juries do. It is critical to our system that they continue to do that.”

The reasons for the decline in civil jury trials at the federal level are many and include Congress creating causes of actions for which jury trials are not provided, the vast number of frivolous lawsuits filed in federal court that are just dismissed, and the increased use of alternative dispute resolution, of which Florida has been a leader.

“A mediated settlement is better just about any day than a jury-trialed verdict,” Presnell said.

Another contributing factor to the decline is the spiraling costs associated with going to trial.

“I see lawyers a couple of years out of law school making more than a federal judge, charging an hourly rate of $300 for doing fairly routine stuff, and I don’t think it is any longer economically feasible, particularly in today’s economy, for that to continue,” Presnell said.

Even more troubling, he said, is the growing tendency to over-litigate.

“Take a typical contract case — a breach of a written contract. Count one, we have this contract, and the other side breached it, and I lost the benefit of my bargain. Count two, well, if they did not really breach it there was some sort of implied obligation, and they must have breached that. Well, maybe there is a fiduciary claim here, too, and maybe an antitrust claim, and maybe some sort of unfair competition claim with connection to our trademark concern, and they just throw everything out there. And then you spend years of discovery trying to whittle this stuff down and, ultimately, after a Rule 50 motion, you end up with expressed breach of contract,” Presnell said.

That type of conduct wears down judicial resources and “has to be a significant factor in why lawyers don’t try cases anymore, unless it involves millions of dollars.”

Presnell said when cases before him do go to trial, it is not unusual for three lawyers, a paralegal, and tech person on a computer to be sitting at the defense table.

“It’s got to be costing them over $1,000 an hour to try this case,” Presnell said.

There is also a perception by lawyers and their clients that juries are not capable of handling complex commercial litigation, a view Presnell admits he shared when he was a practicing lawyer.

“Although the older I got and the more cases I tried, the more I came to realize, ‘You know, they usually do get it right,’” Presnell said.

“If the lawyer does his job and does it well, our juries can get it right.

“I think they get it right 90 percent of the time, and the other 10 percent I’m wrong.”

Presnell said the Middle District interviews every juror after a trial, and he now appreciates how seriously jurors take their charge and how intellectually perceptive they are.

“If the lawyers do their jobs and do it right, the jury can figure it out,” he said.

What will keep the decline in jury trials from getting worse?

Presnell said he has no ready answer, but there are some novel approaches being considered.

He said California is exploring the concept of mini jury trials where, if both parties agree, they enter into a high-low stipulation.

“Going into it, the plaintiff would know he would get at least this, and the defendant would know he would not get any more than that,” Presnell said.

“They would agree to only take three hours for the presentation of each case; they would agree there would be no court reporter; and they agree there would be no appeal.”

“It’s basically an offshoot of arbitration, except that it is using a jury to make that decision rather than some professional arbitrator,” he said.