Wisconsin Lawyer: As I See It How 'Trial Lawyer' Became an Oxymoron:

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    As I See It
    How 'Trial Lawyer' Became an Oxymoron

    Many statistics suggest that civil jury trials are virtually on the brink of extinction. This lament for the disappearance of civil jury trials traces their decline and explores what has been lost in the process.

    Wood R. Foster, Jr.

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    As I look back over my 45 years of a Minneapolis-based practice, almost all in the civil trial-litigation arena, including cases in both state and federal courts in Wisconsin, it is hard not to notice that there are increasingly few role models for the would-be trial lawyer today. If we are honest with ourselves, we have to admit that most of the traditional role models for trial lawyers either have been fictional, such as Atticus Finch, Perry Mason, and Alicia Florrick (The Good Wife), or are deceased or no longer practicing lawyers, such as Abraham Lincoln, Clarence Darrow, Thurgood Marshall, Melvin Belli, and Ralph Nader.

    Even in an area as large as the Twin Cities region, where my practice was always based, when I ask a litigation-focused colleague to identify two or three currently practicing Minnesota civil trial lawyers who excel at jury trials, the question will generally be met with a long pause, followed by tentative reference to a handful of veterans who have retired or are nearing retirement. In my experience most Minnesota lawyers (whether or not they consider themselves trial lawyers) are hard-pressed to name even a single publicly prominent and currently active civil trial lawyer, let alone one whose career is etched in the public imagination. It’s only a guess, but I suspect the same is true in Wisconsin.

    There is a reason for this. Trials – particularly civil jury trials – hardly ever happen anymore. “Trial lawyer” does not mean what it used to mean. I strongly suspect that every currently practicing lawyer who thinks of himself or herself as a trial lawyer knows exactly what I am talking about.

    As I thought about this, I really thought I had stumbled onto a topic that needed a closer look. But I soon discovered I am very late to this party – the dearth of civil jury trials has been a steady topic in legal academia and in the realm of bar activism for a very long time. Much to my surprise, I stumbled across a 1974 piece in the ABA Journal1 by Minnesota federal district court Judge Edward J. Devitt, in which the very title of the article reflected his own view: “Federal Civil Jury Trials Should Be Abolished”(!)

    [T]he civil jury trial will soon be a memory shared only by grizzled veterans and will only rarely (and apparently reluctantly) be experienced by today's litigators.

    Compulsory use of juries, he opined, “is an unnecessary, time consuming, and costly appendage to our system of justice and does not well serve either the litigants or the public. Judges in the federal system are at least as well qualified as juries of lay people – probably better qualified – to decide issues of fact and law fairly.”

    The persistent backlog of cases in federal court, Judge Devitt said, “is caused largely by the number of civil jury trials required by the 7th Amendment.” “Certainly,” he contended, “we cannot continue just to add more judges and build bigger courthouses.” And though the great weight of published opinion that can be found on this topic seems to relegate the late Judge Devitt to a lonely minority, the great weight of experience has proved Judge Devitt’s views prescient if not popular.

    The Brink of Extinction

    The sad fact is that the civil jury trial is almost gone, and not just in federal courts. The phenomenon is national and has almost reached the point that the civil jury trial will soon be a memory shared only by grizzled veterans and will only rarely (and apparently reluctantly) be experienced by today’s litigators.

    Wood R. Foster Jr.com WoodFoster siegelbrill Wood R. Foster Jr., Michigan 1968, practiced law in Minneapolis from 1968 until 2014, most of it as a litigator with Siegel Brill. He was president of the Hennepin County (1992-93) and Minnesota State (1999-2000) Bar Associations (MSBA). In 2017, he received the MSBA’s Lifetime Achievement Award. A slightly different version of this article first appeared in Minnesota Bench & Bar.

    The numbers are a little startling. As of 2012, most sources suggest, fewer than 2 percent of all federal cases went to trial, with less than 1 percent being tried to a jury.2 Civil jury trials are literally on the brink of extinction.

    An October 2015 Minneapolis Star Tribune article reported on a $9.1 million medical malpractice plaintiff’s verdict by a Hennepin County jury. What jumped out at me was the newspaper’s report that this record-setting verdict was the only one of the 50 largest malpractice awards ever reported in Minnesota that resulted from a jury trial.3 (More recently, a second jury award was added to the top 50 – with a record award of $20 million to a woman who died after giving birth.4)

    The demise of jury trials is not unique to Minnesota. Wisconsin’s annual online Statewide Disposition Summaries tell the same story. During 2016, fewer than 1,000 felony cases were resolved by jury in the entire state – well below 3 percent of all charged felonies. How many of these were defended by public defenders is not reported, but experience suggests that less than half those trials were defended by lawyers in private practice.

    In the same year, only 269 jury trials were conducted in Wisconsin civil cases.5 A 2016 New York Times article reported that federal district court judge Jesse Furman, during his first four years on the federal bench in New York City, had presided over exactly one criminal jury trial.6

    To me, the significance of all this is not the statistics but the impact of this phenomenon on the profession as a whole, particularly coming at a time when the profession is experiencing rapid change at so many other levels. One heritage all lawyers have always shared is the history of trials (which, after all, shaped the common law), the methodology and procedure of trials and evidence (which every single one of us studied in law school), and the very language of the courtroom in general. We have thus inherited a collective self-image, even if many (most) of us are not frequently immersed in lawsuits or court proceedings. When nonlawyers think about lawyers, the vague image in their head is almost certainly someone arguing to a jury in a court of law. After all, Abraham Lincoln – who, like Clarence Darrow, never attended a law school – is reputed to have tried literally thousands of jury cases in his career as a lawyer. Don’t we all want to ride those coattails to some extent?7

    No one has captured this phenomenon more colorfully than Iowa federal district court Judge Mark W. Bennett, whose 2014 article in the ABA publication Litigation, titled "Obituary: The American Trial Lawyer, Born 1641 – died 20??" is simply classic:

    Small wonder that most large-scale civil cases are settled. Long before trial is even a possibility, the presiding judge is sick to death of the endless motions.

    "The American trial lawyer (ATL), who in innumerable ways enhanced the lives of so many Americans and made the United States a fairer, healthier, safer, more egalitarian and just nation, passed away recently. Although a precise age is uncertain, ATL is believed to have been at least 371 years old at the time of death.…

    “The autopsy determined that ATL most likely died from a long term, progressive illness exacerbated by a slow, debilitating virus … commonly known as Celotex-Anderson-Matsushita syndrome. The death certificate also lists … a surge of ‘litigation industry’ cancer cells – replacing healthy trial lawyer skill cells…, the vanishing civil jury trial…, a genetic mutation … that came to be known as ‘ADR’;… [and] the inability of courts to implement reforms that would have reduced the enormous cost of getting cases to trial and enabled ATL to go off life support….”8

    Judge Bennett's blistering obituary identifies ATL’s surviving heir as “American Litigator (AL)”, who is “the bastard child of ATL and ADR.” The judge explains that “ALs do not try cases; ALs ‘litigate’ them.” ALs, he suggests, are defined by their lack of actual jury trial experience despite the fact that they “spew courtroom jargon to clients and opposing counsel as if they were real trial lawyers.” But ALs are frauds, the judge asserts, because:

    “They file motions … and bill endless hours for developing untested and unrealistic trial strategies … generating Everest-like mountains of paper. They are paper tigers. They never work alone, always traveling in packs. As trial dates approach, their relentless bravado evaporates into unlimited excuses to settle.”

    Nor can any modern “trial lawyer” fail to notice that “ALs” prefer to travel in packs. It is very common to see several lawyers in the courtroom during the argument of a motion, for example. A classic example of the pack instinct occurred as I was preparing this article, when one of my partners attended oral argument before an 8th Circuit panel relative to an interim defense appeal of class certification in a large case. No fewer than eight lawyers sat at opposing counsel’s table, though only one spoke!

    Jury Trials Are Important to American Society

    Jury trials are important not only to the justice system but to American society as a whole, as these quotations from presidents and a preeminent early observer of the nation make clear.

    “Representative government and trial by jury are the heart and lungs of liberty.” – John Adams, 1774

    “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” – Thomas Jefferson, 1789

    “The true sanction of political laws is to be found in penal legislation, and if that sanction be wanting the law will sooner or later lose its cogency. He who punishes infractions of the law is therefore the real master of society. Now the institution of the jury raises the people itself, or at least a class of citizens, to the bench of judicial authority. The institution of the jury consequently invests the people, or that class of citizens, with the direction of society.” – Alexis de Tocqueville, Democracy in America, 1831

    Gamesmanship

    In my own 45-year practice, weighted during the last two decades toward class and collective actions, I noticed all these things. Since the late 1990s, jurisdiction, venue, and discovery requests, however ordinary, were more and more frequently opposed and, when possible, interlocutory appeals were filed that could consume a year or more. New technologies led to defense production of hundreds of thousands or even millions of pages of useless information in response to discovery requests. These pages were located and selected not by lawyers but instead by computers and IT specialists, both of which might be located on the other side of the globe. Today it is simply a fact that jury trials, like total eclipses, only rarely happen.

    Experienced trial lawyers know that 90 percent of everything that happens in discovery never makes it into court, says prolific Texas lawyer Stephen Susman, which is another way of saying that 90 percent of what happens in discovery is not important to the case outcome. Today’s litigators, he argues, “try to determine whether any particular [litigation] practice is beneficial to their side while being detrimental to the other side,” which in turn rests on the assumption that “if the other side likes it, I don’t,” and vice versa.9

    Small wonder that most large-scale civil cases are settled. Long before trial is even a possibility, the presiding judge is sick to death of the endless motions. He or she orders mediation, often more than once, and sometimes related not to case resolution, but only to discovery issues. In federal court, jurisdictional, procedural, and discovery issues are often delegated to a magistrate judge for resolution, and the latter’s resolution(s) are then re-litigated before the judge by the losing side.

    Most judges are quite persistent – and never ambiguous – about their desire to see the case “go away.” Trial lawyers know that they ignore such “desires” at their peril. This kind of judicial pressure, coupled with the enormous out-of-pocket expenses that now characterize nearly all complex civil cases, give clients on both sides of the case endless reasons to mediate or otherwise settle.

    One result of the disappearance of trial lawyers is the advent of another new breed of lawyer: the professional mediator. At hourly rates that compare with rates charged by most law firms, large numbers of former judges and some former litigators now travel from conference room to conference room, patiently explaining to litigants – and “litigators” – why trial is a bad idea and "splitting the baby" is a good one. Mediators’ personal success and reputations heavily depend on their success at settling yet another case that will never be presented to a jury.

    The litigation cycle has come to be measured in years, not in months; in my own experience, which included cases in more than one-half the states, most federal and state "rocket docket" initiatives did not succeed. And not all judges are temperamentally or intellectually up to the challenge of presiding over the increasingly complex pretrial process. One judge in my own experience sat on a Rhode Island class certification motion from 2004 until 2008!

    A 10-year lifespan is not unusual for a large case today; the nationwide multidistrict Fed Ex driver employee-status litigation that emerged intact in 2016 from a series of interim appeals was originally commenced in 2003 and is still in the final throes of adjudicating fee disputes between lawyers – disputes that threaten to increase this litigation’s age beyond its current 14 years.

    So who and where are the real trial lawyers of today? Can we really deny that Judge Bennett is spot on? We “American Litigators” are increasingly dividing, redividing, and subdividing ourselves into narrower and narrower categories of specialization. Individuals and entire firms specialize and subspecialize in medical malpractice, environmental, land use, automobile, product liability, or corporate malfeasance cases. The trend reminds me of the old rhubarb about the definition of a true specialist – someone who knows more and more about less and less until he or she knows almost everything there is to know about almost nothing at all.

    Is it unfair to characterize modern complex litigation as an extended (and very expensive) form of gamesmanship? The game, of course, consists of jurisdictional challenges, venue challenges, Rule 12 motions (and the occasional hideous Rule 11 motion), burdensome (and serial) discovery requests, burdensome (and serial) discovery responses, serial motions objecting to the discovery requests and the discovery responses, Daubert motions, appeals of magistrate judges’ rulings, interlocutory appeals on class certification rulings, directed verdict motions, and more. Tactics have essentially replaced trials as the modern method of resolving major disputes.

    So it’s hardly surprising that trials have disappeared. Worse yet, the settlement agreements that terminate large cases more and more frequently contain confidentiality clauses that prevent the public from getting any idea of how much was paid or how serious the alleged wrongdoing might have been or even from knowing that a settlement has been reached. This confidentiality in turn stifles public attention to – and discussion of – disputes that sometimes have important public policy implications.

    Given the new generation of tactics, it is hardly surprising that judges take every opportunity to “get rid” of major cases before trial so they can focus on the plethora of small matters that come before them daily, many involving self-represented litigants and criminal defendants whose cases do not interest “serious” trial lawyers.

    Lawyers are by no means solely responsible for the demise of the civil jury trial. Business-backed lawmakers have played a major role – and for obvious reasons. Plaintiffs, after all, are a thorn in the side of business, and always have been. After protracted legislative battles ultimately won by business-defense interests, many types of cases, including the entire securities law arena, now face arbitration and can never be the subject of a jury trial.

    And while arbitration’s proponents argue that arbitration reduces the number of cases that might clog a docket, it cannot be denied that enforcement of the nation’s securities laws has been taken almost entirely out of the hands of federal courts and placed in the hands of business-friendly (and almost always business-paid) arbitrators. Stare decisis and judicial supervision now play virtually no role in the enforcement of the nation’s securities laws; nor does the arbitration process offer the safeguards of a jury trial, let alone meaningful review by an appellate court. Reported cases on securities law violations since the early 1990s are almost nonexistent.

    Employment law appears likely to be the next large arena to follow the exit of securities law from the litigation arena. The Economist, always reliable, recently reported that in 1992, only 2 percent of nonunionized employees in the U.S. were required to arbitrate workplace disputes. As of 2017, the publication reports, that arbitration-bound percentage had increased to 54 percent.10

    Nor do courts deplore or resist the (now) almost universal use of arbitration clauses and “no-class-action” clauses in consumer contracts, which were the subject of an exhaustive three-part study by the New York Times in November 2015.11 These clauses, which the courts have upheld, have undermined consumer rights generally because the amount at issue when a bank or a utility or a large service provider misleads or cheats a customer is often small relative to a single customer, but very large when all customers are considered. Does anyone doubt that the current administration will try to “improve” on the push toward privatization of the courts?

    Conclusion

    I freely admit that the tone of my thoughts on this subject is curmudgeonly. I feel lucky to have been in active practice at a time when civil jury trials were still a reasonably regular feature of the trial practice. I understand that plenty of lawyers take a dim view of plaintiffs’ lawyers in general, but the underlying point is inescapable: many of us became trial lawyers because we grew up with a romanticized view of the history, value, and efficacy of the American jury system, in which randomly selected citizens played a major part in resolving disputes of all kinds. The role models (fictional or otherwise) that we all observed as we grew up and thought about venturing into the legal profession have pretty much disappeared.

    Nothing on the horizon suggests that jury trials – particularly on the civil side – will return any time soon. The trend, for better or worse, is exactly the opposite.

    Endnotes

    1 60 ABA J. 570 (1974).

    2 See, e.g., Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, J. Empirical Legal Studies 1 (2004): 462–63, 489 (1.8 percent of total dispositions in 2002); Administrative Office of the United States Courts, Judicial Business of the United States Courts annual publications from 2000-2010 (1.1 percent in 2010). See generally Rebecca Love Kourlis & Dirk Olin, Rebuilding Justice:The Importance of Trials,Voir Dire, Spring 2012.

    3 Paralyzed Minnesota Mechanic Awarded $9.1M in Malpractice Verdict, Minneapolis Star Trib. (Oct. 17, 2015).

    4 Twin Cities Jury Awards $20M in Malpractice Case for Woman Who Died After Giving Birth, Minneapolis Star Trib. (Aug. 29, 2017).

    5 www.wicourts.gov/publications/statistics/circuit/docs/caseloadstate16.pdf.

    6 Jury Trials Vanish and Justice is Served Behind Closed Doors, N.Y. Times A1 (Aug. 8, 2016).

    7 Joseph F. Anderson Jr., Where Have You Gone, Spot Mozingo? A Trial Judge’s Lament Over the Demise of the Civil Jury Trial, F. Courts L. Rev. 4, at 102 (2010).

    8 39 Litig. No. 2 (Spring 2013).

    9 Stephen D. Susman & Thomas M. Melsheimer, Trial by Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases, 32 Rev. Litig. 431 (2013).

    10 Shut Out by the Small Print, The Economist (Jan. 27, 2018).

    11 Part 1 of the series, and links to the other two installments.