By Richard Gabriel
Over 150 years ago, Abraham Lincoln famously ended the Gettysburg Address with: “and that government of the people, by the people, for the people shall not perish from the earth.” And yet the jury trial, as guaranteed by the Sixth and Seventh Amendments of our Constitution, is perilously close to vanishing from the judicial landscape.
Civil jury trials are under 2% of filed suits in federal courts and under 1% in state courts. California court budgets have lost almost half a billion dollars since 2008, closing thirty-nine courthouses and seventy-seven courts in still-open courthouses. Peter Wolff, the head of Hawaii’s federal public defender’s office, even stated that his office’s projected budget cuts will make it too difficult for his office to handle complex white collar and death penalty cases, a direct threat to defendants’ Sixth Amendment rights.
In federal courts, judges are routinely using time limits on trials and numerous jurisdictions are either studying or implementing discovery limits . In a survey conducted by the Institute for the Advancement of the American Legal System in 2010, approximately 80% of 6,800 attorneys and judges nationwide felt that the cost of litigation forced cases to settle for reasons other than merit. All of these increasingly frequent anecdotes beg the question: is the civil justice system like Detroit, heading for bankruptcy? If so, what would be the “Chapter 11” restructuring plan? Will reduced resources, arbitrary limits, and reactive legislation become the norm?
The truth is that there is no restructuring plan because we have failed to define the fundamental goals of our civil justice system other than the indistinct sustaining of our 7th Amendment rights. In every other significant aspect of our society, such as health care, energy, education, business, and the economy, we measure the performance of those systems. The Obama Administration recently recognized the efforts of 120 manufacturers who have made investments to save energy costs, cut emissions, and improve profitability. The National Institute of Health invests more than $30 billion every year in medical research with 50,000 grants going to more than 300,000 researchers at 2,500 universities, medical schools, and other research institutes, including 6,000 of its own researchers.
By contrast, in 2012, the National Center of State Courts had an annual budget of $33,325,812 to support 338 employees, along with 35 volunteers and 26 board members. Yet every day of the week, decisions are made in our civil court system by judges, jurors, parties, and their attorneys that affect not just the outcome of cases and people’s lives, but innovation, social policy, and the direction of our national economy. The National Center for State Courts, the Institute for the Advancement of the American Legal System, and different committees of the American Bar Association have all undertaken important work to study and address various individual aspects of the civil justice system such as judicial independence, implicit bias, and juror internet use. However, we have still not articulated what should be two ongoing goals in our civil justice system: improving the efficiency and effectiveness of our Constitutional safeguards. While these aspirational goals may seem vague and impossible to define, they are not. However, to best study these issues and implement reforms, we need to 1) utilize qualitative measures; 2) put aside our perceived tactical advantages and self interest; and 3) be willing to change the way we litigate and try cases. None of this will be easy.
In 2010 when I started looking at these two issues, I initiated a pilot survey to begin studying the attitudes of litigants, attorneys, and judges about the civil justice system. Although this pilot study only polled 90 attorneys, judges, and legal support professionals, 68% believed that pre-trial litigation process was either somewhat or extremely inefficient, while 43% believed that the trial process was somewhat or extremely inefficient. However, it is promising that over 95% of those polled believed that the entire litigation process could be made more efficient without compromising the rights of the litigants.
How would we go about measuring efficiency and effectiveness of our hallowed civil justice system? First, we would establish markers for performance. The six markers I would use are:
- Goal Setting - the ability of litigants and their counsel to articulate what they hope to get out of the litigation process.
- Organization and Prioritization - the ability of counsel to organize information to give the fact finders the best understanding of the factual and legal issues in the case and what is most important.
- Efficiency – the ability of the courts and counsel to communicate the most salient factual and legal issues while expending only those resources necessary to address those issues.
- Role Definition – clearly defining the role of all participants in the litigation, including the fact finder, the witnesses, and the lawyers so that that each participant fulfills their role and only their role.
- Communication and Education – ensure that the information communicated during the course of litigation is of such clarity that the fact finder or litigation participant fully comprehends the factual and/or issues and the ramifications of their decisions.
- Cost – the expense associated with the litigation and its proportionality to remedies sought by the litigants.
Once we have established these performance markers, we can then look at implementing qualitative reforms and “best practices” to improve the efficiency and effectiveness of the litigation process. Although it may not seem like it, both of these issues are closely tied together.
How would I define greater effectiveness? By improving the quality of information that judges, attorneys and juries use to make decisions in the litigation process. In the pilot survey I conducted, 77% of those polled believed that Courts provided poor or only fair assistance to jurors in making the most informed decision in a case. About 60% thought that attorneys do only a fair or poor job in educating judges and jurors about their cases. Given these results, I will outline a series of recommendations in this post, recognizing that each of these points could take up an entire blog post.
1. Jury selection should be focused on conducting the most meaningful discovery of biases that will inform the issuing of cause and peremptory challenges.
In a pre-trial hearing, each side would clearly state the germane juror biases that they would like to address in jury selection. The court and the parties would then discuss whether to use a questionnaire or address these questions in voir dire or a combination of the two, and the most efficient way to implement that procedure. The court would strongly encourage and even provide a model for open-ended questions to get jurors to candidly disclose any life experiences or attitudes that may affect their ability to be fair and impartial. The courts would be provided with a model that more clearly outlines the research on bias so they have greater understanding of the differences between bias, habituated response, preferences, and impressions. “Fairness” and “impartiality” would be treated as two distinctly different concepts. The question “Can you set it aside?” would be replaced by “How do you think that [attitude, experience] will affect you?” The Judge would state the criteria he or she would use to determine bias.
2. Create a trial plan on the necessary evidence for the fact finder to make the most informed decision in the case.
In a pre-trial conference, the sitting Judge or a designated judicial referee would conduct probing discussions with each of the parties to determine the verdict they are seeking and how they expect to get to that verdict through evidence, testimony, and demonstrative exhibits. The attorneys would be constantly queried in these discussions regarding whether the designated witnesses are necessary to inform the verdict or whether they are needed for appellate reasons. Attorneys would also be asked repeatedly whether the jurors in the venue are likely to understand the presented issues, how the jurors are likely to use the proposed evidence, and to think about how they might make the evidence more understandable for a lay jury. The Courts and attorneys would be provided up to date research literature and guidelines on information comprehension, including the issues of audience attention, evidence retention, recall accuracy, organization, interpretation, and utility.
In this pre-trial conference, the parties would be strongly encouraged to streamline their cases and create an evidence presentation plan that organizes and sequences the evidence into a meaningful narrative for the jury. The attorneys would be encouraged to teach rather than preach their cases in order to ensure greater jury comprehension. Finally, efforts would be made to finalize the essential claims in the case and the verdict questions the jurors would be asked to decide.
3. Refocus trials on the dynamic presentation of evidence necessary for the fact finder to make the most informed decision in the case.
Once the jury is empaneled, jurors would be given pre-instruction on the general issues of a civil case such as burden of proof, witness credibility, and note taking but also, to the extent possible, the specific claims, the legal instructions pertaining to those claims, and even verdict questions. In complex litigation, the Court and the parties should endeavor to create a neutral tutorial to give jurors context for the evidence they would be hearing in the case.
At the beginning of each case, jurors would be given, in written or verbal form, the order of witnesses and a brief description of what each witness will testify about. If the witnesses would be testifying about demonstrative exhibits, they would be encouraged to stand and move to the screen, board, or flipchart they are using. Jurors would be encouraged to take notes and to post written questions about areas of testimony or evidence they are confused about. With longer testimony, attorneys would be encouraged to summarize the witness’ testimony in a non-argumentative way. The Court would explore loosening procedural strictures on questioning to allow more narrative answers from witnesses. The parties would be encouraged to create an agreed upon glossary of terms, demonstrative organizational or flow charts, or reference guide for the jurors.
The Judge would also check in periodically with the jury to monitor whether they are following the evidence or whether they are tired or bored. The Court would feel free to have short stretch breaks every 45 minutes to optimize juror attention. Juror exhibit notebooks would be encouraged to allow each juror to have a personal reference for all exhibits entered into evidence. Pre-deliberation discussions should be further explored and developed to allow jurors to more easily process complex evidence or testimony.
Our founders envisioned a tremendously versatile and dynamic citizen’s justice system without a real knowledge of how extraordinarily dynamic it was. It is time to pay attention to the needs of the citizens who are administering justice and update our antiquated civil justice process. In recognizing the tremendous body of research about human decision-making and implementing behavioral reforms and best practices, we will make our courts more accessible, more economical, and improve the overall efficiency and effectiveness of civil justice.
Richard Gabriel is President of Decision Analysis, Inc. and on the Board of Directors for the American Society of Trial Consultants Foundation. He is co-author of Jury Selection: Strategy and Science and the upcoming Penguin publication of Acquittal, a book about high profile trials and the criminal justice system.
1 Langbein, J. H., The Disappearance of Civil Trial in the United States (August 3, 2012). 122 Yale Law Journal 522 (2012); Yale Law School, Public Law Working Paper No. 256; Yale Law & Economics Research Paper.