Jury trials have been declining steadily for the last 20 years. If the trend continues, jury trials and even the judicial system as we know it, will be no more. Our judicial system has been a hallmark of democracy–a system that involves citizens like no other.
Most individuals and entities in this country do not want to be held personally or corporately responsible or accountable for their conduct. The adversarial judicial system has long been a tug of war among the participants, both on the civil and the criminal side. Those with the most money, power, and influence can effectively affect the outcome. This manipulation often occurs even before the litigation process begins.
It is natural for those sought to be held accountable to attack the system that holds them accountable or punishes them for their conduct. The more the system is denigrated, the more its effectiveness is diminished, and therefore, its use. This goal of weakening the tort system is being achieved. Of course, this includes both jury-made decisions and judge-made decisions. Surveys and studies illustrate that judges have a great deal of faith in jury decision-making and most often agree with the decision of the jury.[i]
The perception created by those being made to pay jury awards has been that juries are out of control. The goal has been to diminish the jury’s role in the system. Has the effort been successful?
By publicizing all the horrors of the tort system, they get a lot done," explains Pamela Gilbert. "You pass legislation that curbs their liability; that’s the ultimate prize. But short of that, you affect juries, you affect elected officials, you affect judges, you affect the entire discourse of the United States.[ii]
Jury trials are disappearing! Department of Justice surveys revealed that in 1962, 11.5% of all civil cases in federal court went to trial. By 2002, that number had dropped to 1.8%. In state court it is even more dramatic. According to the National Center for State Courts (NCSC), between 1976 and 2002 civil jury trials dropped about 67% and down to 0.6% in state court.[iii]
In U.S. district courts, tort trials dropped 80%! Bench and jury trials have been declining consistently for 20 years. Although long suspected, this trend has now been confirmed.
“WASHINGTON — The number of tort trials concluded in U.S. district courts declined by nearly 80 percent – from 3,600 trials in 1985 to fewer than 800 trials in 2003, the Department of Justice’s Bureau of Justice Statistics (BJS) announced today.(August 17th, 2005) Approximately nine out of 10 tort trials involved personal injury issues – most frequently, product liability, motor vehicle (accident), marine, and medical malpractice cases.”[iv]
According to the American Bar Association, tort cases, excluding small claims matters, account for less than 2 percent of the total caseload (civil and criminal) in state courts. In the mid 1990’s, personal injury cases accounted for only 6.2 percent of the civil cases filed in the state courts. In fact, there were four times as many domestic disputes filed in state courts as personal injury tort claims.
“Some commentators suggest that judges are better suited than juries to decide civil cases. They claim that judges are influenced by sympathies or prejudice less often than juries, making their decisions on liability fairer and their awards more reflective of the actual damages incurred by plaintiffs.“[v] However, as indicated later in this paper, such is not always the case.
Verdict Amounts Are Declining
“Media reports of jury verdicts in civil cases tend to focus on cases involving large damage awards. Yet the damages typically awarded by juries are relatively modest and, in most types of cases, have declined substantially over the past decade.”[vi]
Contrary to public perception, the number of tort filings has dropped in the last 15 years. Car wreck cases alone have dropped 14%. In tort jury trials, the overall median damage awards have dropped 56% from $64,000 in 1992 to $28,000 in 2001 in the 30 states surveyed by the NCSC.[vii]
The following median final jury awards are expressed in 2001 dollars:
2001– $31,860 a decrease of 51.3%.[viii]
There is inconsistency in the drop in median jury awards depending on the particular survey, however all show a substantial decline. Jury verdict reporters often overstate awards and unreport up to one-half of the defense verdicts. Media reports of trends in jury verdicts and awards are often based on statistics compiled by jury verdict reporters. A careful analysis of the accuracy of those statistics revealed that they often omit defense verdicts and low-dollar plaintiff verdicts.[ix] Media reports often cite large punitive awards, but according to the NCSC, the ratio of punitive damages to compensatory awards is typically less than 2 to 1.
Recent Department of Justice surveys revealed that judges decide cases in favor of the plaintiff more often than juries and often in greater sums.[x] None of these recent statistics have been overlooked by those attempting to use the system to their advantage. Presently, special interests are impatient in the transformation of the judicial system. Because of that impatience there is an effort from the legislative branch, executive branch, and other interests to intimidate judges who do not decide cases as desired through threats of impeachment, election defeat, or worse. The recent term “activist judge” is being used to describe such judges.
Without abandoning the efforts to diminish the jury system, additional efforts have been made nationally to not only change the law but to make sure that judges who preside in both state and federal courts are selected carefully so that their decisions will comply with the wishes of vested interests. For example according to a November 3, 2004 press release by the U.S. Chamber of Commerce, they supported pro-legal reform judges who were elected in 15 of 16 targeted key races. The press release referred to West Virginia, Mississippi, Ohio, Michigan, Pennsylvania, Washington, Texan and Alabama as states where they enjoyed success.
Although Alabama and Mississippi have been referred to as suit crazy states, personal injury awards in Alabama are $15,000 below the national average, according to the 2006 Alabama Verdict Survey, published by Jury Verdict Research. Mississippi is similar.
Only 2 percent of trials are for personal injury lawsuits, according to the Bureau of Justice Statistics Bulletin: Federal Tort Trials and Verdicts, published 2005. This is fairly consistent to the results of an American Bar Association study in 1993.
Statistics from Jury Verdict Research, a non-partisan publication, as well as records from the Alabama Administrative Office of Courts show that jury verdicts for compensatory damages in Alabama for individual victims continue to be among the lowest in the country.[xi]
Perception vs. Reality
Consider the present beliefs of the public in contrast with reality. The majority of our citizens believe that the number of tort filings is increasing every year. They believe the median amount of verdicts is increasing rather than decreasing, and that jury trials are clogging our courts and increasing cost. Interestingly, the cost to the state per jury trial is only $843.00. Compared to arbitration, the cost of a jury trial is a bargain.
The public believes the Civil Justice system has a negative impact on our country and should be completely revamped. They believe the system costs them money not only in taxes, but also in the purchase of products, health care, and more. They are distrustful of lawyers and judges, and are convinced the system abrogates personal responsibility and primarily works for the benefit of lawyers and judges. They think lawyers will lie to them to achieve their ends.
As a result of decades of public relations campaigns and manipulation of the media, the majority of the American people have formed attitudes or beliefs that negatively impact most civil cases. Lawyers must be aware of, counter, inoculate, and use their knowledge about these negative attitudes or beliefs in and out of the courtroom.
There are many, many improvements that could and should be made in the present judicial system, but they should be made with the considered recommendation of the Bar and Judiciary based on what is best for our citizens–not through legislative intimidation. We face the destruction of one of the three branches of government that has made this democratic experiment work. Without checks and balances, the three branches of government that we constitutionally hold dear, may very well collapse under its on weight. Sooner or later people will become impatient and intolerant of what is happening in this country. Sooner or later they will quit feeding from the trough of misinformation and public relations used to persuade them of facts that are untrue. In the meantime, lawyers should speak out, speak the truth, speak to power, and honestly represent their clients with the goal of achieving justice.
[i] William M. Ragland Jr., President of Atlanta Bar Association, Our American Jury System is Worth the Trouble, a release relating to Law Day, May, 2005, “A national survey of former jurors concluded that 82% believed that the jury on which they served reached a fair conclusion in the case. Most lawyers and judges anecdotally agree that juries reach the right result the vast majority of the time.”
[ii] Pamela Gilbert, a lobbyist in Washington state, Tort reform Seattle Post-Intelligencer on the Web 21 November 2004 INTELLIGENCER<http://seattlepi.nwsource.com/opinion/199885_focus21> Tort reform advocates play fast and loose with facts Sunday, DAN ZEGARTGUEST COLUMNIST
[v] Richard Y. Schauffler, Project Director, Paula Hannaford-Agor, Robert C. LaFountain, and Shauna Strickland, authors National Center for State Courts, June 2005. Information is derived from the 2001 Civil Justice Survey of State Courts, a joint research project of the NCSC and the Bureau of Justice Statistics, which examined characteristics of bench and jury trials in 46 large urban courts in 22 states, representing 23 percent of the U.S. population. A grant from LexisNexis provided the authors with access to statutes, case decisions, and periodical literature necessary to prepare the publication, no page.
[x] Thomas H. Cohen, J.D., Ph.D., BJS Statistician, Civil Justice Survey of State Courts, 2001, (November 2004, NCJ 206240) U.S. Department of Justice Bureau of Justice Statistics. “Plaintiffs prevailed to a greater extent in tort trials heard by judges than juries. Judges found in favor of plaintiffs in nearly two-thirds of tort trials, while juries ruled for the plaintiffs in about half of tort trials.”
[xi]Mark Wolfe; Statistics show lawsuit abuse doesn’t exist; Special to the Mobile Press-Register, Sunday, July 30, 2006.