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Not your father’s kind of justice

Now we settle, or let arbitrators and mediators decide.


PETER MILLER: Says most clients don't want to wait for trial.
  • PETER MILLER: Says most clients don't want to wait for trial.

The right to a trial by a jury of one's peers is still widely regarded as a great virtue of the American Way of Life. But statistics show that fewer Americans are exercising that right, at least in regard to civil lawsuits. We seem to have lost faith in our peers.

The number of lawsuits decided by juries has declined rather steeply over the last 40 years or so and the trend continues downward, as opposing parties choose other ways to resolve their differences. This decline causes considerable concern in some quarters. Is the quality of American justice declining also?

“The jury system is the best thing there is,” says Peter Miller, surely Arkansas's most recognizable lawyer. “The combined intellect of a jury is greater than any individual. When I'm standing before a jury, I think the best kind of justice in the world is going to be done.”

Yet Miller rarely stands before a jury, though he has a huge law practice, in part the result of his extensive advertising. His smiling face, seen on television, billboards and the back of the Little Rock telephone directory, is familiar to all. His office handles 600 to 700 cases a year, he says, and litigates 20 to 25. The number that actually go to a jury is even smaller. “Litigates” mean “files suit.” Most of Miller's clients settle before a suit is filed. A few more settle after the suit is filed.

Miller's kind of law practice wasn't around 40 years ago, at least not in Arkansas. A prominent old-school Little Rock trial lawyer, now deceased, said a few years back that people like Peter Miller, with their advertising, their numerous clients and their few trials, had taken the fun, and some of the worth, out of the practice of personal-injury law.

Most lawyers settle more cases than they litigate, as Miller points out. “The power that I have over an insurance-company lawyer is their fear that a jury will give me more money than they're offering,” Miller says. His fear is that the jury will give less, or none at all. “Ultimately, the client makes the decision,” Miller says.  Do client and lawyer want to take the risk of waiting a year or so for a trial they may lose, or do they want the bird in hand? Most laymen would take the bird even if their lawyer wasn't urging them to do so.  They may need compensation quickly, even at a discount. They may be distrustful of the whole court system.

But that's always been true, to some extent. Why is the number of jury trials falling even further now? Over the last 10 years, only about 1 percent of civil cases in Arkansas courts have gone to a jury. Once, the number would have been in the double digits. Up until about 1925, as many as 25 to 30 percent of civil lawsuits nationally went to a jury.

A 2007 study by the National Center for State Courts showed Arkansas in a group of about a dozen states that had fewer than 10 jury trials per 100,000 population. In fact, Arkansas was next to the bottom, with 6.6 trials per 100,000. Only Wyoming (6.4) had fewer. Alabama topped the list, at 59.2 trials per 100,000, followed by Illinois, with 46.7.

A drop in jury trials is visible at the federal level too. In 1962, 11.5 percent of the civil cases in U.S. district courts were tried by juries. By 2002, the percentage had dropped to 1.8. In the 12-month period that ended Sept. 30, 2008, the percentage was .9.

The rising cost of litigation and the rising workload of judges are two reasons for the reduction in trials. The number of lawsuits isn't getting smaller, just the number that go to trial.

The shrinkage results also from the increased use of alternative methods of  resolving disputes, particularly mediation and arbitration. All three branches of government seem to have agreed that alternatives to litigation are good. Legislative bodies authorize them. Judges, some of them overworked, try to avoid trials by encouraging ? maybe even ordering ? opposing parties to give the alternatives a try. Executives often promote their use. President Obama is doing that right now, caught as he is in the great medical-malpractice fight, now a part of the even larger health-care reform fight. Doctors and their insurers want limits on jury awards; plaintiffs' lawyers are strongly opposed. Obama, a lawyer himself, won't support limits on damages, but he's urging more and better alternatives to litigation.

A few years back, the Arkansas legislature approved a “tort reform” law making it harder for plaintiffs to win medical malpractice cases. As it was intended to do, the law has made lawyers reluctant to take malpractice cases. “I get a hundred calls a year on medical malpractice,” Peter Miller said. “I may take one or two. If you want to sue a doctor or a hospital for negligence, it'll cost at least $100,000 [paid by the lawyer] and take 3 or 4 years.” The only medical malpractice cases Miller will take are those involving catastrophic injuries ? blindness, say, or paralysis for life. People who've been injured  less seriously go without compensation. Further “tort reform” will mean still fewer cases heard by juries. “Tort reform is driven by the U.S. Chamber of Commerce,” Miller said. “There's nothing to reform. They want to take control of juries, to not allow juries to give what juries think is fair.”

Few lawyers will say bad things about the jury system on the record. It has a following. Anonymously, some lawyers who represent corporate clients will speak more frankly. Here is one such lawyer, in an online comment about an article deploring the decline of jury trials:

“Trial by jury in civil cases has been largely abolished in most of the rest of the world. It doesn't seem to undermine anyone else's ‘faith in the system.' ‘Deepening' the jury pool will mean even less-sophisticated jurors and turn the trial system into more of a lottery than it is today. Capping legal fees will make it even harder for those with just causes to be confident of victory and is seriously Constitutionally suspect for that reason.

“If people's option of a trial by jury was being infringed, that would be something to think about. Complaining about people's purely voluntary, and highly intelligent, failure to exercise that right is like thinking that the First Amendment is withering away every time someone fails to spend his day giving Nazi speeches.”



 In mediation, the opposing parties agree ? sometimes with arms twisted by the court ? to seek help from a neutral third party, often a lawyer, or a retired judge or someone with expertise in a particular field, such as banking or construction. Both sides pay for the mediator and they can choose the person from a list of state-certified mediators. Sometimes the judge picks the mediator. The mediator acts as a go-between and motivator for the two parties. If the parties reach agreement with the mediatior's help, the case ends there. If not, the case proceeds toward trial in the normal fashion. The mediator does not make a decision, and the parties do not give up their right to a jury trial if mediation doesn't work.

Mediation is widely used in Arkansas. Arbitration, also widely used in some states, is less common here because no general arbitration statute has been enacted. But big companies often require arbitration clauses in contracts, such as those between a credit card company and its customers, or a fast-food chain and its franchisees. In arbitration, disputes are assigned to an arbiter or panel of arbiters. These arbiters make binding decisions. (Arbitration is how major-league baseball teams and their players settle highly publicized contract disputes, That's probably what many people think of when they think about arbitration.)

No judge in Arkansas uses mediation more than Faulkner Circuit Judge Michael A. Maggio of Conway. As part of a broader program to manage his docket efficiently, Maggio requires mediation of every case for which a jury trial longer than one day is requested. Sixty to 70 percent of the cases that go to mediation are settled that way, he said.

To Maggio, mediation is primarily a scheduling tool. Cutting down on the number of cases that go to jury trial allows quicker access to the court system, he said. He had no thoughts on the question of whether mediated justice is better or worse than jury justice.

Chris Heil of Little Rock, president of the Arkansas Trial Lawyers Association, says mediation is a good thing when both parties agree to it. Even when mediation is court-ordered, “it's not something we try to avoid, ” he said. Mediation is cheaper than going to trial, and there's no risk involved. If the parties can't agree in mediation, the case proceeds as it would have anyway.

Heil has a lower opinion of arbitration, and is glad the legislature hasn't required it to be used as widely as it is in some other states. Arbiters render binding decisions, he noted.

“A jury is an expression of society's norm,” Heil said. “Any decision about people's lives should be made by their peers, not by one arbiter who may bring his own prejudices to the case.”

Kelly Olson is an associate professor at the William H. Bowen School of Law at UALR.  She directs the mediation clinic at the school, as well as being a state-certified mediator herself. She thinks the decline in the number of jury  trials is both good and bad.

“We want to make sure that everyone has the right to a jury trial if that's what they need,” she said. “But some people have a misunderstanding of what happens when they get their day in court. They think they'll tell their story, and then they'll be given a big amount of money. It doesn't usually work that way.”

Judges don't have as much flexibility as the opposing parties do, and in mediation the parties make the decisions, Olson said. In divorce cases, for example, “Nobody knows more about what will work best for the family than the family members themselves.” Both mediation and arbitration are “quiet and confidential,” not conducted in public view as trials are,  and that may be a large consideration for the parties.

“There are much higher satisfaction rates with mediation than with litigation by the parties,” Olson said. “They don't have resentment toward the legal system or each other. After mediation, they're less likely to go back to court within five years [than if they'd gone through litigation].”

Robert Steinbuch is another associate professor at the UALR Law School, and a defender of litigation. Arbitration and mediation can be useful, he said, but litigation too is a kind of “alternative.”

 “It's an alternative to the wild, wild West. This is where we peacefully settle our disputes. When people say we're a litigious society, I ask what's the alternative. Somebody exacting revenge? We have a lot of disputes because we have a lot of people.”

“The Talmud says that if a person is wronged, he should not compromise, but be given justice,” Steinbuch said. “Solomon offering to split the baby is often cited as a case of mediation. It's not. It's litigation. Solomon was never going to split the baby. When he threatened to, the real mother waived her right. Solomon then acted as a judge. He awarded the whole baby to the rightful parent. That's not mediation, that's not compromise.

“Judges bemoan their workload, and that complaint is justified to some extent,” Steinbuch said. “But the job of the judiciary is to resolve disputes. If judges are overworked, they don't have to be judges. Judges are elected in this state. They don't have to run. Federal judges don't have to stay on the bench.

“That doesn't mean that some dockets are not completely overwhelming. They are. The solution to that is to hire more judges, expend more public funds.”

Litigation is not only about righting wrongs, Steinbuch said. When people see the outcome of lawsuits, they're likely to alter their own behavior. If a corporation gets hit with a big judgment, other companies are less likely to do the thing that got the first company in trouble.



 Litigation has no better friend  U.S. District Judge William R. Wilson Jr. of Little Rock, and now that he's stepped down from fulltime judging to what the federal court system calls “senior status,” he may be even more outspoken than before. That's saying a lot.

Wilson, possibly Arkansas's best trial lawyer before he was appointed to the bench by President Clinton, said, “There's no doubt that civil jury trials are going down. I think it's a bad thing. It really bothers me that in franchise cases, the chains have a mandatory arbitration clause in the contract. If somebody here has a dispute, they find they have to go to arbitration instead of a jury trial. We tried to hold that illegal, but the Eighth Circuit [federal Court of Appeals] and the Supreme Court upheld the clauses. The courts have said it's national policy to favor arbitration. Who said that people wanted arbitration? It's only special interests who think there's too much justice going around. Arbitration works in a lot of things, like contract disputes between companies. But I hate that little folks have to go to arbitration.”

Another reason that jury trials have gone down, Wilson said, is that some of today's judges never tried cases when they were practicing lawyers. Because of their lack of experience with jury trials, “They get mad if the lawyers won't settle. Like it's not our job to try cases.”

Lawyers may be reluctant to go to trial too, because of their own inexperience. The number of lawyers is increasing as the number of trials decreases. National groups such as the American Board of Trial Advocates have been forced to revise their membership requirements, so that lawyers can become members with fewer tried cases.

Philip S. Anderson of Little Rock, a past president of the American Bar Association, represents the sort of clients who write arbitration clauses into their contracts. “Parties want to maintain some degree of secrecy,” he said. He doesn't believe there's been a general loss of confidence in the jury system, but says “some defendants in commercial cases feel more comfortable trying a case before an arbitrator than trying a complicated commercial case before a jury.”

But Anderson thinks the biggest reason for the growth of arbitration and mediation is the  expense of going to trial today. “The discovery process has been taken to such extremes that it's far more expensive to go to trial today than even 10 years ago.” The new technology contributes to the increased expense. “It takes longer to prepare for cases than it used to. Recovering e-mails can be enormously expensive and time-consuming.”

“The jury system is very important,” Anderson said. “It's what keeps our system of justice from being elitist.” Jurors feel a tie to the system of justice, he said. “Polls have shown that people who've served on juries have more faith in the system than people who haven't.”

Even so, Anderson's not alarmed by the increased use of alternate methods of dispute resolution.

“I think it's a natural evolution of our system of justice. It's market-driven. Alternate methods are more efficient in many cases.”




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