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The Florida Bar News - January 15, 2012

Panel fears the declining number of jury trials may undermine public confidence

By Gary Blankenship
Senior Editor

The declining number of jury trials in both state and federal courts and in civil and criminal cases can undermine public confidence in the judicial system and decrease the skills of lawyers and judges when they actually do have a trial.

Better funding for the courts, internships and better training for law students, and expedited procedures to make trying cases more cost effective could help offset that trend, according to TheFlorida Bar’s Special Committee to Study the Decline of Jury Trials.

The committee was appointed in 2010 by past President Mayanne Downs to look at the trend of fewer jury trials and see what impact that decrease has on both the court system and citizens. The committee submitted its report to the Bar Board of Governors last month, and board consideration will occur during its January 27 meeting.

The committee, co-chaired by board member Jay Cohen and former board member David Rothman, compiled a variety of national and state statistics and reports on jury trials. It found that over past decades while the real number of cases filed has increased, those that are resolved by jury trials has declined both as a percentage and in real numbers. Those statistics apply to both state and federal cases in both civil and criminal dockets.

The percentage of cases going to trial did hold steady in county courts, the committee found, but those were overall a very small number of cases. With the exception of DUI, far less than 1 percent of the civil and criminal county court cases go to jurors.

Among the committee’s findings:

• Between 1962 and 2002, the annual number of federal civil dispositions rose from 258,876 to 501,320, but the number resolved by jury trials declined from 5,802 to 4,569. The number tried declined from 11.8 percent to 1.8 percent.

• During the same time, federal criminal filings went from 33,110 to 76,827, while the number resolved at trials declined from 5,097 (15 percent) to 3,573 (4.7 percent).

• For Florida’s circuit courts, the fiscal year 1986-87 saw 155,407 civil dispositions with 2,413 (1.6 percent) going to jury trials. By the 2009-10 fiscal year, there were 401,463 civil dispositions, but only 879 (0.2 percent) were resolved by jury trials.

• Over the same period for circuit criminal cases, there were 130,575 criminal dispositions and 4,091 jury trials (3.1 percent) in 1986-87 and 200,710 dispositions and 4,112 jury trials (2.1 percent) in 2009-10.

• An ABA study reviewed the trial statistics for 21 states and the District of Columbia between 1976 and 2002. The study included both bench and jury civil trials, with bench trials being the overwhelming majority. It found that in 1976, 528,567 out of 1,464,258 dispositions were by trial (36.1 percent) and by 2002, that number had dropped to 487,200 trials out of 3,087,857 dispositions (15.8 percent). For criminal trials over the same period, the disposition by trials dropped from 8.5 percent to 3.3 percent.

The report cited several reasons for the decline in jury trials. On the civil side, it noted there is an increasing use of mediation, arbitration, and other alternative dispute resolution methods.

“Another factor is the expense involved, not just in conducting a trial, but in preparing a case for trial,” the report said.

“These costs include the expenses involved in discovery, the costs of expert witnesses, the ability of the client or the attorney to fund the case, and the attorney’s fee. Another factor is the amount of time it takes to bring a case to trial and any delays that occur along the way.”

The report said that offer of judgment law could also encourage cases to settle before trial.

On the criminal side, the report listed reasons for the decrease in jury trials, including that prosecutors and defense lawyers are better trained and recognize which cases should be tried and which should be plea-bargained. But it also said that minimum mandatory sentences and sentencing guidelines have played a role.

“Sentencing guidelines give prosecutors a tremendous weapon with which to ‘encourage’ defendants to plea, rather than go to trial,” the report said. “This power gives prosecutors the leverage to force defendants who otherwise would go to trial to accept plea offers.”

In state courts, plea agreements allow a downward departure in sentencing guidelines. In federal courts, sentencing guidelines allow a reduction in sentence in a plea agreement when the defendant accepts responsibility for his or her criminal conduct.

“Entering into a plea agreement offers more certainty (in federal court) and usually absolute certainty (in state court) than going to trial,” the report said.

It cited perceptions that there can be a penalty imposed on a defendant who chooses to go to trial and is convicted.

And there are budget concerns: “Importantly, the committee members are concerned that the lack of full funding for the court system, especially insufficient funding for public defender and state attorney offices to hire and retain quality lawyers, is forcing our overworked, publicly paid lawyers to settle more cases, some of which would otherwise have gone to trial.”

Fewer trials mean fewer members of the public coming into contact with the court system through jury service, the report said, and greater use of mediation and arbitration means more parts of the system are private and not part of the public record as in trials.

Fewer trials also mean fewer lawyers develop and maintain trial skills, which can also affect the judiciary as some of those lawyers become judges.

“The committee is concerned that the fact that fewer jury trials are being held could be used as a reason not to fully fund the court system; a never-ending cycle of less funding and less independence begins to evolve,” the report said.

The committee’s report listed several recommendations for removing barriers for jury trials:

• Fully fund the courts, because, “There is a need for more courtrooms and more judges to try cases. While the number of jury trials has decreased, the caseloads of the courts have greatly increased, placing increased pressure on the courts to move cases.”

• Ensure there is no penalty for seeking a jury trial. “Any penalty that is imposed after a jury trial that would not be imposed on a settlement of the case may be viewed as penalizing a party for exercising the right to a jury trial. The committee recommends that courts refrain from imposing any penalty that could be perceived as punishment for the exercise of this constitutional right.” • Enhance training for jury trials. There should be greater use of the law school intern program and the approval process for that program should be streamlined. Internships with state attorneys and public defenders should be particularly encouraged.

• The One Campaign can be used to get lawyers to take pro bono cases that will give them trial experience, and the SCOPE program could be expanded to allow an inexperienced lawyer to sit through a trial with an experienced lawyer.

• Encourage law students to observe one civil and one criminal trial before graduation.

• Allow judges to discuss cases with attorneys once the trials are over, without fear of future recusal motions.

• Improve case management to include the reduction of delays for discovery and other issues which tend to delay trials and increase costs. “If adequate resources can be reinstated, then trial divisions can be effective in advancing those cases that merit resolution by trial, but otherwise face numerous roadblocks.”

• Give judges more authority over discovery so that often expensive processes can be streamlined and costs reduced.

• Use existing state laws that allow for expedited and summary civil trials.

• In criminal cases, sentencing laws should be reviewed because they are the driving force behind the decline in criminal jury trials, “and the committee is concerned that the decline in jury trials is not in the best interest of the lawyers and courts, as well as the citizens of Florida.”