News & Events

Airing Out Jury Trials

As Program Chair for the 2019 DRI Products Liability Conference (February 6-8, 2019, in Austin, Texas  – mark your calendars NOW), I have had the privilege of working to arrange some pretty amazing speakers and presentations.

One such a speaker is U.S. District Judge J. Thomas Marten, U.S. District Court for the District of Kansas.  Judge Marten, to put it bluntly, is on a mission. During his tenure as a federal judge, he has seen civil trials slowly disappear from his court room.  As a result, after working with the Civil Jury Project at NYU School of Law, he has modified trial practices in his courtroom in order to bring back the civil jury trial as the drafters of the U.S. Constitution intended.  He is now reaching out to other districts and jurisdictions to encourage judges and lawyers to incorporate these practices to bring back the civil jury trial.

I had the opportunity, in planning the DRI Products Conference, to speak with Judge Marten in detail because the topic is one of great interest to me (and my fellow colleagues), who love trying cases, but do not have the opportunities they did earlier in their career:

When did you first realize that civil jury trials were beginning to disappear from your courtroom?

It was not so much a sudden realization, as it was looking at our District’s numbers over a period of years. Those numbers are broken out by each judge and totaled. There were years I had several (4 or more) civil trials, some years where I had none or one. Because criminal trials are part of our docket, until one really looked at the numbers separately, the civil trial decline was not so obvious. Additionally, we seem to go through cycles where we have more trials and some less. But 4-5 years ago, it was obvious that the decline was not a mini-trend; it was steadily downward over an extended period of years and continuing.

When did you decide that the decline of the civil jury trial might be a problem?

Having taught trial advocacy for well over three decades in a variety of settings, about five years ago, I started thinking about why we are teaching trial ad when fewer and fewer cases are getting tried. Going through the steps, the next thought was, while fewer cases might be going to trial, those that do go need lawyers who are both comfortable and capable in the courtroom. So that answered the first question. The second question became, why are we having trials? The Constitution of the United States guarantees the right to a jury trial to resolve disputes, but that right, as is the case with many others, may be waived. So what do jury trials give us that other dispute resolution processes do not? Among the most important benefits is community input on the matters at issue. Where will parties find 12 persons (I have gone back to using 12-person juries in civil cases) with no stake in the outcome of a dispute to hear both sides, to receive instructions on the law governing the case, and to decide who has the better side of the issue(s)? Finally, if the plaintiff prevails, the jury decides what the case is worth. There may be scientific ways of polling citizens about value, but the results will be suspect because those polled will not have the benefit of seeing and hearing all sides of a case presented in a most comprehensive and persuasive way. How is a company persuaded that one or more of its practices or products violates the law or is dangerous? What provides the economic incentive to make changes? From a defense perspective, to avoid a series of nuisance settlements, what better vehicle than several defense verdicts which will deter future suits? These are all serious issues that are exacerbated without verdicts to provide benchmarks and boundaries.

Why did you decide to take action?

When I became a judge, one of the first things I noticed was that the outcome of the case, which is pretty much the bottom line for a trial lawyer, became of no consequence, so long as the process was good. To my way of thinking, that meant in any trial, we should direct our efforts toward giving the jury the clearest, most accurate, understandable and comprehensive view of the evidence possible. If we could accomplish that at trial, the verdicts would be better, meaning we would achieve something closer to justice. I had been having the lawyers do complete opening statements before jury selection in every civil trial since 1998. I had instructed the jury after jury selection but before the lawyers started presenting evidence in a few instances. In two cases, and with an appropriate instruction, I allowed jurors to discuss the evidence they had heard that day before they went home for the day. Several other tools we now use in all my civil trials are things I have thought about for some time. I decided to go all in a year ago.

What are the main culprits/causes for the decline of the civil jury trial?

There are plenty of culprits. A few include mandatory arbitration clauses, ADR (and the perception that ADR, in nearly every iteration, is less costly than taking a case through trial), mandatory mediation, clients who are nervous about going to trial, lawyers who are nervous about going to trial, and judges who push settlement. Some judges have legitimate concerns about managing their dockets. Some came to the bench with little or no trial experience and are wary of trying even a simple case (that is another matter for another day, but judicial appointments and elections do not always result in qualified judges). Litigation expense is always cited as a factor. Judges who are willing to make the effort can properly assist in controlling expense with proportionality rules and frank discussions with the parties about the case as it moves forward. From my perspective, the largest single economic factor is the parties’ lack of trust in the good faith of the opposing party or parties. There are suspicions of hidden agendas on one side or the other when a party suggests stipulating to certain facts or procedures. That is, lawyers frequently do not know each other well enough to develop trust. Certainly, they do not talk directly to each other nearly enough.

What are the solutions to stopping the decline?

Some are obvious — lawyers need to work together to agree on some fundamental facts and issues to pare a case down to where it can be tried with a reasonable number of witnesses, a reasonable number of exhibits, in a reasonable period of time. As an example, I agreed to try what was supposed to be a 6-8 week FLSA case in Central California. While the parties ultimately agreed to a bench trial, which they said would cut the case to a four-week trial, we actually finished it in less than three trial days, just by encouraging the parties to agree on the admissibility of exhibits (they had agreed to the admissibility of 1 out of roughly 500 exhibits; they finally agreed to all but 7, none of which they used in the trial). This was an extreme case, but it demonstrates the importance of actually agreeing to facts and and the resolution of certain issues that are not or should not be contested. Some other issues which should be on the table for discussion are improving the quality and confidence of the advocates and judges, some novel approaches to trials, such as high-low agreements (there are both a floor and a ceiling on recoveries), agreements to truncated trials, imposing time limits on the parties both in getting to trial and during trial, and increasing the confidence of the parties in the jury system. Finally, and this is a tough one, the lawyers and the court need to recognize that the purpose of a trial is to determine the truth.  A lawyer must always seek the best possible result for the client, but not at the expense of the truth. If the parties understand that rigorous representation has always included the notion that it must be within the bounds of the law, and not overstepping them, I think more cases would be placed in the hands of community members, As I mentioned previously, some of the procedural changes a handful of courts have adopted are concerned with giving juries the best information available to reach the best decision possible. There are always legitimate disputes. It may involve what the parties’ respective beliefs are, whether it is contractual language or where fault lies in a personal injury or death case. And the damages are frequently subject to a good faith disagreement. Those cases should be tried to benefit those with similar disputes that follow.

What are ways that the average lawyer can help in stopping the decline?

All lawyers can begin communicating personally, having breakfast or lunch together, meeting at either lawyer’s office for face-to-face discussions, relying less on email and text messages. They can jointly formulate well-thought-out plans for discovery, and limit discovery to those matters truly in issue. In most instances, lawyers could stipulate to about half of the facts brought out through testimony. And they could work with the courts to try presenting evidence in novel but meritorious ways. These include time-limits for trial, opening statements before voir dire, focused lawyer-conducted voir dire, providing proposed instructions to the court well ahead of trial to assist the court in giving full sets of instructions to jurors before presenting evidence, not fearing jurors discussing the case during trial (with appropriate instructions), dealing with alternative trial schedules, short explanations to jurors about what the lawyer hopes to prove/disprove with the witness taking the stand if the testimony is somewhat complex, and finishing earlier than expected. These things and much more go into a decision about whether to take a case to trial, but I do believe that the cleaner the case, the better the verdict. There are likely to be fewer outlier verdicts. The parties, whether they agree with the verdict or not, may develop more confidence in the system, and be willing to take more cases to trial.

Anything you want the average lawyer to know about the decline of the civil jury trial?

To me, the “average lawyer” is the one who is out there doing her or his best on behalf of a client every day, whether it is in litigation or some other legal area.  Our decreasing numbers of civil trials leads me to hope that everyone who has access to the courts, extending well beyond only those in the legal profession, recognizes that having a group of persons from one’s community decide disputes between neighbors has been a part of western civilization for nearly 1,000 years. Our Founding Fathers held jurors in such high esteem that they wrote jurors into the Constitution itself. And the right to a jury trial in civil cases is enshrined in the Seventh Amendment to the Bill of Rights. A civil jury trial should not be lightly waived, nor should it be discarded for economic reasons without carefully considering what the dollars and cents really will be if one looks at cost-effectiveness in shaping the case and conforming discovery to the true issues. What of the impact of a jury verdict beyond the case at issue? And what is the perspective of twelve community members looking at the evidence worth? Nothing gets missed when the case is well-tried. And while the jury will attach a value to the case, how does one measure the worth of that decision? As the famous series of television advertisements put it, “Priceless.”

Judge J. Tom Marten currently sits on the bench as a U.S. District Judge for the District of Kansas.  Judge Marten earned his undergraduate degree from Washburn University and his law degree from Washburn University School of Law.  Following a clerkship with U.S. Supreme Court Justice Thomas C. Clark, Judge Marten practiced for nearly 20 years in private practice.  Since his appointment in 1996, Judge Marten has been involved in a wide range of civil and criminal litigation. He is a judicial advisor to NYU’s Civil Jury Trial Project.


by Fred E. (Trey) Bourn, III, attorney at Butler Snow

Trey Bourn, attorney at Butler Snow