March 19, 2014 – The importance of the jury trial is well-documented. Yet for three decades, jury trials have consistently declined in both federal and state courts. Why is this happening? How does it impact the justice system? And how does it affect lawyers?

A panel of lawyers and judges will discuss the “disappearing jury trial” at the State Bar of Wisconsin’s Litigation, Dispute Resolution, and Appellate Practice Section Institute, May 22-23, at the Pfister Hotel in Milwaukee, including veteran litigator Terry Johnson.

Johnson, a shareholder at Peterson, Johnson & Murray S.C. in Milwaukee, says a number of self-perpetuating factors have led to a general decline in civil jury trials over the years. And a legal system with fewer jury trials can lead to unwanted consequences.

“There are enormously good reasons to settle in many cases, and that’s always been true,” said Johnson. “But to the extent that cases are settling that should be tried … I wonder how many clients are left with feelings that the legal system isn’t working.”

Starting in the late 1970s, Johnson used to try between 10 and 20 civil cases per year. Now, Johnson tries about four or five per year on average. “When settlement becomes the norm, lawyers and clients are less comfortable taking cases to trial.”

When the rare case does go to trial nowadays, Johnson says, a firm’s more experienced trial lawyers are most always called upon. This leaves less opportunity for younger lawyers to gain trial experience. And a legal profession with fewer trial attorneys may encourage settlement, too.

“Clients would be less comfortable going to trial with inexperienced lawyers,” Johnson said. “We’ve tried to work out programs to give more trials to younger lawyers for fear that the older lawyers will all die and retire and there will be nobody to try cases.”

Trials Trend Downward

Back in 2004, the Journal of Empirical Legal Studies released a groundbreaking report on trial trends in state courts from 1976 to 2002. Wisconsin was not a part of the data set, but data from 22 states revealed that jury trials had declined significantly.

For instance, while total civil case dispositions increased 111 percent (1.5 million to more than 3 million) in 22 states from 1976 to 2002, civil jury trials fell 32 percent over that same time period. Likewise, in 23 states, criminal dispositions went up 127 percent during that 26-year period, but criminal jury trials dropped 15 percent.

The report, “Examining Trial Trends in State Courts: 1976-2002,” concluded that “the rate of state court trials showed that both jury and bench trials have declined over the last two decades despite substantial growth in the number of state court dispositions.”

Wisconsin maintains jury trial and other case disposition data back through 2003. While the percentage of criminal trials remained relatively constant from 2003 through 2012 – ranging from 0.935 percent to 1.25 percent of total dispositions – the civil jury trial trend continued downward in numbers and as a percentage of total civil dispositions.

The accompanying table shows total dispositions in criminal and civil cases from 2003-2012, noting the number of jury and bench trials, settlements, and plea dispositions.

For instance, in 2004, there were 118,854 total civil case dispositions. A total of 553 cases (0.465 percent) went to trial. That year, 7,705 cases settled (6.41 percent).

After 2004, civil case dispositions continued to increase, topping out in 2010 at 159,972. During that same period, the number of jury trials continued to decline. By 2012, a total of 309 cases (0.228 percent) went to trial, and 6,978 cases settled (5.16 percent).

In Wisconsin, personal injury cases generally go to trial more than any other civil case. In 2004, 252 (4.85 percent) of 5,192 personal injury cases were resolved by jury trial. In 2012, juries resolved just 115 (2.92 percent) of 3,928 personal injury cases.

This data suggests that jury trials in state civil cases have been declining dramatically for the past three decades and continue to decline in Wisconsin.

Why Have Trials Declined?

A number of factors contribute to the general decline in civil jury trials, says Johnson, including the obvious: trials cost a lot more these days.

More people use mediation, Johnson says. But he doesn’t attribute mediation as a huge factor in the declining number of jury trials. A more substantial factor is that litigation perceptions on both sides have changed, he says.

“There’s a belief – I don’t know if it’s accurate or not – that jurors were more pro-plaintiff 25 years ago than they are today, at least in personal injury cases,” Johnson said.

“Because of things like tort reform, advertising, or political developments, juries are not anywhere near as receptive,” he said. “I think plaintiff’s attorneys believe that, whether it’s true or not. I think it’s true. But more importantly, I think they believe it’s true.”

“On the other side, insurance carriers believe different things,” Johnson said. “I think they are more interested in settling because they want to avoid the expense of trial, more so than 20 years ago when the trials were a lot less expensive for them.”

Johnson also said that insurers can drive cases towards settlement because of the perception that plaintiff-side lawyers see trials as less desirable nowadays.

“They sense that in ordinary to poor cases, the plaintiff’s attorneys are to some extent less willing to go to trial,” Johnson said. “If that’s the perception, insurance companies may stick to their guns about what they’re willing to offer.”

Johnson said other factors drive more cases towards settlement, too. More judges tend to view trials as a failure on the part of the parties to reach a settlement, he says.

“This is an overstatement, but I see a mindset that if we have to try this case, it means the system has not worked somehow,” Johnson said. “So there’s a push toward settling cases, and judges can foster the idea that the right result is settlement, not trial.”

Johnson says judges, with more cases and fewer resources, could feel more pressure to push settlement resolutions in lieu of trials that could take days or weeks.

“All these things sort of play off each other,” Johnson said. “It’s a vicious cycle. And one byproduct is a lot of lawyers out there who aren’t getting trial experience.”

Fewer Lawyers Getting Trial Experience

Fewer trials means less trial experience for younger lawyers, Johnson says, because firms and clients generally want the veteran litigators on the case. In prior years, with enough trials coming through the door, a younger lawyer might get the nod.

“That’s not happening anymore,” said Emily Lonergan, a young litigator at Gimbel Reilly Guerin & Brown LLP in Milwaukee. Since graduating from law school in 2011, Lonergan has notched five trials, but not because of her firm’s ability to attract triable cases.

“When you had two to three trials per month – which is what I’m told is the way it used to be – you could easily turn to the young lawyer and say, ‘you go try that next one.’ But that risk doesn’t make sense when there are only one or two trials per year,” she said.

Lonergan is getting trial and other courtroom experience because her firm is giving her opportunities to co-counsel on trials. Since clients generally won’t pay for two trial lawyers unless the case warrants two lawyers, the firm pays for that experience.

Some firms can eat those costs, which add up with multiple-day trials. One of Lonergan’s trials took a week. Another one took two weeks. As she logs more trial miles, her more experienced trial partners let her take on more responsibility.

“Some firms just can’t do that,” Lonergan said. “I’m fortunate to be in a firm that is willing and able to invest in my long-term success as a trial lawyer. In the next seven to 10 years, the firm will have an experienced trial lawyer to handle these cases.”

Lonergan says she recognizes the difficulty for many younger lawyers to get trial experience in today’s legal environment, which can also perpetuate more settlements.

“Frankly, if someone comes to you with a settlement that’s too low, you have more bargaining power as someone with trial experience,” she said. “Someone who has never tried a case before and realizes that they risk losing may want to take that offer.”

Trial experience also helps other aspects of the job, Lonergan says. She wrote about “The Value of Trial Experience to a Young Lawyer” in a Marquette Law School Faculty Blog post:

Lonergan points out that young public defenders and prosecutors may get more trial opportunities. But even criminal trials are few and far between.

In about 75 percent of misdemeanor and felony cases, the defendant enters a plea. Of the 113,953 criminal dispositions in 2012, only 1,403 cases (1.25 percent) went to trial. The percentage of criminal trials that go trial consistently hovers around 1 percent.

Is Fewer Trials a Bad Thing?

Johnson says the “disappearing jury trial” is bad for the legal system for a number of reasons. First, some cases simply deserve a trial. Second, fewer trials means lawyers have fewer opportunities to assess the risks of going to trial on similar cases.

“I think there are a lot of cases that deserve to be tried rather than settled because they present real issues that should be resolved, not compromised. That’s just me,” he said.

Johnson also says cases now settle based on other settlements, not based on trial results. “Again, this is an oversimplification, but we don’t have enough trials to have a good enough sample anymore. This makes lawyers and clients uncomfortable going to trial.”

“If you’ve tried 10 cases in the last year, you have more confidence you can predict how the case will turn out then if you settle 50 and try two,” Johnson said.

Finally, Johnson says fewer trials could mean more opportunity for clients to be dissatisfied, which can fuel a perception that the legal system is inadequate.

“Many times, clients are very happy to settle cases,” Johnson said. “They don’t want to go to court, and there are enormously good reasons in many cases to settle.”

“But to the extent that you are settling cases that should be tried, I wonder how many clients are left with feelings that the legal system isn’t working, that legal system isn’t really providing a means for resolving their disputes in an acceptable way,” he said.

“Is this part of the reason why all these surveys say people are unhappy with the legal system? I can see a client settling and then thinking months later, ‘you know what, I was right. We would have won that case. And I settled it. And I’m not happy.’”

Trends in Civil and Criminal Cases, Wisconsin 2003-2012*

* compiled from circuit court statistics compiled by the Wisconsin Court System.