Wednesday, February 9, 2011

JURY TRIALS: AN ENDANGERED SPECIES

Hugh Wood
Atlanta, Georgia


Tort driven jury trials both in state court and federal court are extinct. Well, if they're not extinct they are on the endangered species list.

The causes for the endangered status of jury trials in America is somewhat unknown. Now, by contrast, and I am not referring to criminal jury trials which continue relatively unabated (though they are substantially down in the last 30 years) and civil business fights which now occupy more court resources than ever. I am referring to garden variety torts, auto accidents and, yes, medical malpractice. Television and the popular literature continue to assert that the tort system, lawyers and particularly jury trials are driving the United States into "ruin." Yet, jury trials, like the Siberian Tiger, are quite rare.

Since I have not conducted any of my own empirical studies, I must rely on those who have. Thus, this article, I am concerned, will consist more of quotations from other authors than this author (which may very well be an improvement).

This article will review some of the history of the jury trial, it will review the statistics concerning the vanishing jury trial and it will review some scholarly literature concerning the vanishing jury trial. It will then look to the possible reasons for the decline of this noble lynchpin of our civilized society and then postulate some possible recommendations for the future.

It is odd to consider at the outset that poor Mr. Tomkins, walking along the beaten path of the Erie and Lackawanna Railroad, would have never reached a jury trial in today’s court makeup:

Tomkins was injured on a dark night by a passing freight train of the Erie Railroad Company while walking along its right of way at Hughestown in that State. He claimed that the accident occurred through negligence in the operation, or maintenance, of the train; that he was rightfully on the premises as licensee because on a commonly used beaten footpath which ran for a short distance alongside the tracks, and that he was struck by something which looked like a door projecting from one of the moving cars. [1]

I. THE HISTORY OF JURY TRIALS

A. The Assizes

The exact origin of our modern day jury trial is lost in the dimness of time, however, many sources point to the old English assizes as a possible origin. The assizes were a somewhat travelling circuit riding judge and local jury system - though, that is an oversimplification. Keep in mind, serfs had no real rights.

The Assize of Clarendon of 1166 was an Act of Henry II of England that began the transformation of English law from systems for deciding a case as trial by ordeal or trial by battle to a system of deciding a case by evidence. The evidence and inspection of the evidence was made by laymen.  Assize of Clarendon greatly fostered the methods that would eventually be known in common law countries as trial by jury. [2] King Henry appointed "justices in eyre," the counterpart of circuit judges, to travel from town to town. The Magna Carta of 1215 at Runnymead provided some oversight, but it originally granted “rights” only to nobels in relation to the King. It took some centuries for an understanding and application of rights to be applied to the common populace.

B. The Bushell case from 1607

The right of a jury trial in England was established as controlling in early 17th Century.

The 1670 Bushell case marked a major turning point in the development of the modern jury trial. Twelve jurymen refused to convict the Quakers William Penn and William Mead of seditious assembly and were locked up for two nights without food, water, fire, tobacco, or chamber-pot. When this failed to force them to retract their not guilty verdict, the jurors were sentenced to prison until they had paid a fine. Four of the jurors, led by Bushell, refused to pay the fine and challenged their incarceration by a writ of habeas corpus. The Lord Chief Justice released them in a landmark decision establishing the jury as the sole judge of fact. Decline Of The "Little Parliament": Juries And Jury Reform In England And Wales.   See also, 2 II Bushell’s Case, 124 Eng. Rep. 1006, 1007 (C.P. 1670).

C. The United States Supreme Court and Companion State Authority

While the “right” to a jury trial, presumably, came over on the boats from England with the common law, the 1791 United States Constitution contained an Amendment in the Bill of Rights that guaranteed the right of a jury trial for, not only criminal actions, but civil actions.

The Seventh Amendment read as follows: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. Amendment VII. Civil Trials, U.S. Constitution (1791).

The United States Supreme Court has often reviewed the right to a jury trial.  Recently, it again reviewed that right in, City of Monterey v. Del Monte Dunes At Monterey, Ltd., Et Al., 526 U.S. 687, 707-708, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999).  It wrote:

As a consequence, we must reach the constitutional question. The Seventh Amendment provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . ." Consistent with the textual mandate that the jury right be preserved, our interpretation of the Amendment has been guided by historical analysis comprising two principal inquiries. "[W]e ask, first, whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was." Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996). "If the action in question belongs in the law category, we then ask whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791." Ibid. With respect to the first inquiry, we have recognized that "suits at common law" include "not merely suits, which the common law recognized among its old and settled proceedings, but [also] suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered." Parsons v. Bedford, 3 Pet. 433, 447 (1830). The Seventh Amendment thus applies not only [Page 709] to common-law causes of action but also to statutory causes of action " 'analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty.' " Id.

In Georgia, the right to a jury trial appeared in the First Constitution of 1777. It read:

Article XLI. The jury shall be judges of law, as well as of fact, and shall not be allowed to bring in a special verdict; but if all or any of the jury have any doubts concerning points of law, they shall apply to the bench, who shall each of them in rotation give their opinion.

Article XLII. The jury shall be sworn to bring in a verdict according to law, and the opinion they entertain of the evidence; provided it be not repugnant to the rules and regulations contained in this constitution.

That right is granted to Georgians in Georgia’s 10th Constitution, the 1983 Constitution, at Art. 1, Sec 1, Para. 9 of the Georgia Constitution

§ I. Rights of Persons
Paragraph XI. Right to trial by jury; number of jurors; selection and compensation of jurors. (a) The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party.

Additionally, the right is granted by Georgia Statute.  OCGA § 9-11-38.

II. THE VANISHING JURY TRIAL

Despite the constitutional right to a jury trial, the actual number of jury trials being completed in both state and federal court has declined substantially in the last four (4) decades

A. Federal Jury Trials are Vanishing

Jury trials, as the method of resolution, have fallen from 12% of federal actions to under 2%. Galanter, Mark, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, Journal of Empirical Legal Studies, Volume 1, Issue 3, 459 570, November, 2004.

Percentage of civil terminations during/after trial, U.S. district courts. 1962 – 2002.




[There has been a precipitous] decline in the portion of cases that are terminated by trial and the decline in the absolute numbers of trials in various American judicial [venues]. The portion of federal civil cases resolve by trial fell from 11.5 percent in 1962 to 1.8 percent in 2002, continuing along historic decline. More startling was the 60 percent decline in the absolute numbers of trials since the mid 1980s. The make up of trial shifted from a predominant torts to a predominance of civil rights, but trials are declining in every category. A similar decline both in the percentage and absolute numbers of trials is found in federal criminal cases and in bankruptcy cases. The phenomenon is not confined to the federal courts; there are comparable declines of trials, both civil and criminal, in the state courts, where the great majority of trials occur. Plausible causes for this decline include a shift in the ideology and practice among litigants, lawyers, and judges. Another manifestation of this shift is the diversion of cases to alternative dispute resolution forums. Within the courts, judges conduct trials only a fraction of the rate that their predecessors did, but they are more heavily involved in the early stages of cases. Although virtually every other indicator of legal activity is rising, trials are declining not only in the relation to cases in the courts but to the size of the population and the size of the economy. The consequences of this decline for the functioning legal system and for the larger society remain to be explored. Id.

Tort and Contract trials, U.S. district court, 1962 – 2002.




[ & & & ]

The sharp decline in the number of civil trials runs counter to the prevailing image of litigation in the United States. Over the past generation or more, the legal world has been growing vigorously. Almost any measure the number of lawyers, the amount spent on the law, the amount of authoritative legal material, the size of the legal literature, the predominance of law and public consciousness has flourished and grown. It seems curious, then, to find a contrary pattern in one central legal phenomenon, indeed one that lies at the very heart of our image of the court system – trials. The number of trials has not increased in proportion to these other measures. In some, perhaps most, forums, the absolute numbers of trials has undergone a sharp decline. The sense of the change can be gathered in that civil trials in federal court over a ten year interval from 1962 to 2002 have fallen from approximately 14 percent of cases filed determined during the trial or at or after the verdict versus 2 percent in 2002 determined at the jury trial or after a verdict. Id., at 460 and 461.

Civil Trials Conducted by District Judges and Magistrate Judges 1990 to 1999.




B. Bankruptcy Jury Trials are Vanishing

The Absolute and relative number of trials in Bankruptcy Court have declined.

It is interesting to note that the absolute number of jury trials has declined, even though the resources and time relative to the litigated and participants, in Bankruptcy has increased. In English that means, the Bankruptcy Courts have been given huge resources, a vast increase in the number of judges available and a vast increase in staff and in court time since 1962 (and I am aware of the overhaul of Bankruptcy in 1978) and yet from 1962 to the present, Jury trials have plunged.  One conclusion is that the Judges simply do not want to be bothered with jury trials.

Bankruptcy provides a two tier system: One is a bankruptcy filing that allows a debt or creditor dispute to be funneled into the system for a relatively quick and cheap resolution. The second tier focuses on adversary proceedings, the lawsuit-like subset of disputes that sometimes are resolved within a bankruptcy. The trend line suggests that the number of adversary proceedings filed is climbing, while the number of such disputes that are actually resolved by trial is declining. Like the federal court system generally, these data suggests that the trial is additionally vanishing from the bankruptcy system. Warren, Elizabeth Vanishing Trials: The Bankruptcy Experience, Journal of Empirical Legal Studies, Volume 1, Issue 3, Page 913 942, November, 2004. 

C. State Jury Trials are Vanishing

Tort (personal injury) case filings are declining. Long term data from the National Center for State Courts shows a 21 percent decline in tort filings in 30 states from 1996 to 2005. Center for Democracy & Justice, New York, New York: Citing U.S. Department of Justice, Bureau of Judicial Statistics, "Civil Bench and Jury Trials in State Courts, 2005, "NCJ 223851 (October, 2008) at 9. Tort cases represent a small percentage of civil caseloads: In 2007, monetary disputes (contract and small claims cases) accounted for 70 percent of all civil caseloads in seven states reporting statistics, while tort cases represented only 6 percent of civil caseloads in the states. Center for Justice & Democracy, New York, New York citing Richard La Fountain, et al. Examining the Workload of State Courts: A National Perspective From The Court's Statistics Project (National Center for State Courts 2009) at Pages 1 and 2.

1. The Elrod Journal

Even though Texas is considered a hotbed of litigation, statistical studies in Texas show jury trials are substantially off in Texas. Elrod, David W. and Walter, Worthy Fact or Fiction: Are There Less Jury Trials & Trial Lawyers? If So, What Do We Do About It?, Elrod, PLLC Dallas, Texas (2009).

Statistics show that – between 1970 and 1999 – the number of civil cases that went to trial dropped by 20 percent even though the number of civil cases filed rose 152 percent. Between both civil and criminal cases, Judge Higginbotham (Texas) found that the rate of trials dropped from approximately 12 percent in 1970 to 3 percent in 1999. Higginbotham also notes that as a percentage of all civil dispositions, the number of trials has dropped from 11.5 percent to 1.8 percent. Patrick E. Higginbotham, Judge Robert A. Ainsworth, Jr. Memorial Lectern, Loyola University School of Law: So Why Do We Call Them Trial Courts?, 55 SMU Law Review, 1405, 1423 (2002).

Other data presented in other articles have been similar. In Justice Hecht's 2005 article, he provided statistics on Texas civil cases obtained from Texas Office of Court Administration. Those statistics indicated that between 1986 and 2004, the number of civil jury trials in Texas fell by 49 percent, while the number of civil jury trials per court dropped 58.2 percent. Elrod at 5. Citing Nathan L. Hecht, The Vanishing Civil Jury Trial: Trends in Texas Courts and an Uncertain Future, 47 S. Texas Law Review. 163, 188 (2005).

2. Law Journals Reveal the Decline

The Yale Law Journal Asserts Jury Trials are Disappearing

By late in the twentieth century, the jury trial had fallen on hard times. The percentage of all cases being resolved by referral to juries had been declining in both federal and state courts for decades. By the 1990s, that decline had become so dramatic that even with rising total caseloads, the actual number of trials was falling. In the quarter century from 1976 to 2002, for example, the number of civil jury trials in state courts declined by thirty-two percent.

The causes of this decline were multiple. Energetic use of mediation, arbitration, and private judging diverted many civil disputes. Federal sentencing guidelines offered such substantial incentives for defendants who cooperated with the government that plea bargains went up and trials went down.

As for the general public, the experience of participating in a trial had become a chore. Jurors frequently complained about poor treatment at the hands of court officials, the inconvenience of jury service, fear over their role as jurors, and anxiety flowing from uncertainty about the trial process. Moreover, many citizens viewed the jury as archaic, emotional, irrational, and unintelligent. The jury system became a fertile source of material for comedians and cartoonists, up to and including Homer Simpson. This scorn seemed to reach new heights, though it was hardly without precedent. Mark Twain once said that the efficiency of the jury system was marred only by “the difficulty of finding twelve men every day who don’t know anything and can’t read.” State Court Reform of the American Jury. Yale Law Journal On Line (2008?).

3. Newspaper Articles Show the Decline of Jury Trials

i. The Tennessean

Recently The Tennessean published a series of interviews with “trial,” lawyers in Tennessee who lamented that trials are so rare that they doubt they should be called “trial” lawyers.

The trend of settling disputes through alternative means rather than going through a jury trial has been going on for about two decades and continued last year, according to recently released court statistics. Avoiding trials saves litigants time and money — a big selling point, particularly for risk-averse businesses, in tough economic times. But many attorneys worry that grizzled trial veterans such as Branham and Walker are an endangered species, and that the jury trial is vanishing. Her inability to participate in the trials she loved was a key reason Nancy Jones left Bass Berry & Sims' office in 2007 to lead the Tennessee Board of Professional Responsibility. "What it really boiled down to is, when you wake up in the morning, and you haven't had a trial in nine years, can you look at yourself in the mirror and call yourself a trial lawyer?" she said.

[ & & & ]

There were only 384 jury trials in state civil courts in Tennessee last year, nearly 1,000 less than a decade ago. Forty-three were in Nashville, down from 138 in 2000. Federal trial courts have experienced a similar trend. There were 5,325 civil and criminal jury trials in U.S. district courts in 2008, down from 6,839 in 2000 and 9,844 in 1990. Todd Campbell, chief judge of the U.S. District Court for the Middle District of Tennessee, said the lack of jury trials is not only a concern for lawyers and firms, but also the general public. He is proud that his court consistently leads the nation in the number of trials completed per judgeship. The court was 15th out of 94 federal districts in 2009. Gee, Brandon, As jury cases decline, so does art of trial lawyers, The Tennessean, Feb. 4, 2011.

ii. The Lackawanna CitizensVoice

In Lackawanna: Medical Malpractice? Lots of Cost, but No Trials In Lackawanna County, Pennsylvania.   Lackawanna is the origin of one of the railroads that hit the hapless Mr. Tompkins in Erie v. Tompkins, supra.   Despite complaints that lawyers are ruining the medical establishment in Lackawanna, it reports that medical malpractice trials have gone dry.  There are no trials.  It is interesting to note, that no jury trials are occurring, yet medical malpractice insurers have doubled and tripled their rates for an “event,” that seems not to occur.

Lackawanna County's medical malpractice case filings in 2009 dropped 53 percent over the last eight years, a change many experts say is the result of reforms meant to weed out frivolous lawsuits and limit hefty jury awards. Throughout the state, medical malpractice case filings fell almost 42 percent since 2000, according to statistics kept by the Administrative Office of Pennsylvania Courts. But even as state officials hail the success, some experts say more needs to be done. Medical malpractice insurance premiums remain twice as expensive as they were in 2000, said Roger Baumgarten, spokesman for the Hospital & Healthsystem Association of Pennsylvania. In part because of that, many areas across Pennsylvania are seeing a shortage of doctors that could reach crisis proportions in the next 15 years, he said.

& & &

"The overall environment for physicians in Pennsylvania remains very unfriendly," Baumgarten said. "Doctors with school loans to pay and families to raise are still making decisions to leave." In 2009, there were 33 medical malpractice cases filed in Lackawanna County, compared to 71 filed in 2000. The number of cases filed in the county has remained more or less steady since 2003, ranging from a high of 36 in 2008 and a low of 30 in 2007.

The number of medical malpractice cases making it to a jury trial each year in Lackawanna County has also dropped dramatically. Only three (3) cases went to trial last year and of those, only one (1) resulted in a verdict for the plaintiff. Comparatively, 27 cases went to trial between January 2000 and July 2003, three of which resulted in verdicts for the plaintiff. Nissley, Erin L., Medical Malpractice Cases Fall By More Than Half in Lackawanna County, The CitizensVoice, May 17, 2010.

iii. The Kentucky Law Journal (a blog)

Tort trials are significantly off in Kentucky.

Jason Riley's story in the Courier-Journal this past Sunday entitled 'Slip-and-fall' trials becoming fewer addressed statistically what most of us trial lawyers already knew anecdotally - fewer cases are being tried today than a decade ago; and in the case of this story fewer cases involving business premises liability. Stevens, Michael L., Kentucky Law Review, Ky Trials: Fewer Slip and Falls and Speculation as to the Why, Monday, January 08, 2007.

iv. Anecdotal Information

The “impact” of the impossibility or improbability of obtaining a jury trial in the Georgia Court system is, unfortunately, reflected in the posting by a frustrated plaintiff in a case. She blames here lawyer for the lack of a jury trial, when the rest of us know that the reasons are myriad for the lack of jury trials.

Jury Trials In Georgia

I have a case pending in Ga. It is a civil case.
My attorney filed it for a jury trial after taking 1.5 years to even file the suit. It is scheduled to come up soon and I was told by the state court clerk that in that town, she has only had one civil calender-(sic) scheduled jury trial in the past 3 years despite that she has scheduled them every month.
She also told me that attorneys try to avoid jury trials and push them off for other dates and repeat the process. She still has trials that dates back years and years and that they are done by age: first in, first out. My case was finally filed but is a year old.
What I'd like to know is why would an attorney file for a jury trial if he knew they hardly ever go to court and can drag on for years? I cannot grasp the strategy.
Also why are cases allowed to be put off a mulitude of times? Why isn't there a time limit to satisfy the case as oppossed to permitting them to try up time, money and labor resources perpetually?Can this case be refiled for a bench trial and what are the ramifications of doing such considering this is not a small claims issues and there is a 6 month discovery process involved?
I know I will told to direct my questions to the attorney "representing" me, but I'd have better luck talking to G W Bush over steamed oysters next weekend.
Help???? Advise?? Answers?? What are your thoughts? Captured from A thread on Expert Law, perhaps 2007.

III. TORT REFORM

At least with regard to Georgia, tort reform may very well be one of the reasons that jury trials in tort cases have become extinct. Mr. Justice Weltner in 1986, in reaction to the facts in Yost v. Torok, (a tort suit over an auto accident that never occurred), wrote the Opinion in Yost v. Torok, et.al., 256 Ga. 92, 344 S.E.2d 414 (1986). It engrafted the language of OCGA § 9-15-14 into Georgia caselaw.

Thereafter in 1987 the Georgia General Assembly pieced together various tort reform statutes. One statute required an OCGA § 9-11-9.1 affidavit to bring an action against physicians and then amended to include any type of professional in Georgia.

Not to be satisfied at chipping away at various potential court filings, the Georgia General Assembly strengthened the initial affidavit filing requirement. The courts determined that it was a fatal non-amendable defect if such affidavit is not present. The General Assembly passed and the Courts upheld Georgia’s own version of Daubert (taken from Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)).

The General Assembly imposed statutory caps of $350,000.00 for any non-economic damage in a medical malpractice case and provided complete insulation to any emergency room physician. (it is unclear whether the General Assembly will revisit the unconstitutional finding by the Georgia Supreme Court of jury caps. Caps were found unconstitutional in Atlanta Oculoplastic Surgery v. Nestlehutt, et al., 286 Ga. 731, 691 S.E.2d 218 (2010)).

We have had (in Georgia) for a long time the bad faith penalties imposed by OCGA § 13-6-11, being bad faith attorney's fees for actions that occurred in the underlying action. The General Assembly in its wisdom provided us with yet a new statutory codification of malicious prosecution. To the extent that a defendant suffers harm unrelated to attorney's fees, that defendant, provided that it provides statutory overnight mail notice in the underlying case, may proceed to sue the plaintiff under OCGA §§ 51-7-80 through 51-7-85 in an subsequent lawsuit filed within one (1) year.

And not to be outdone in creating road blocks to jury trials, the General Assembly recently left us with an interesting but difficult to comply with, “Offer of Settlement,” statute – OCGA § 9-11-68. In response to formal offers of settlement, the plaintiff must now pick a verdict outcome and be within a range of 75 percent to 125 percent accurate or suffer defendant's attorney's fees. Defendant if it chooses to make an offer must predict that a plaintiff cannot exceed its offer by 125 percent or potentially it suffers plaintiff's attorney's fees.

IV.   MODERN IMPEDIMENTS
        TO REACH A JURY VERDICT

The tort reforms discussed above act as impediments or "tank traps" and keep many causes of action from reaching a jury.   Consider the following reforms in the perspective not as "reforms," but as "impediments," 

Before 1987 and the first round of tort reform in Georgia, a plaintiff was able to identify cause of action, meet with an attorney (and assuming the attorney did the due diligence necessary to file the complaint) and proceed to file the complaint or petition in Superior Court. That complaint would move through a minimum of six months of discovery (after the 1966 Civil Practice Act and assuming that it wasn't discharged in a Motion to Dismiss) and head toward a Motion for Summary Judgment (if filed). If Plaintiff got over the hurdle of the Motion for Summary Judgment the case moved to trial.

This Georgia pattern of “filing to discovery to jury,” exists – no more.

After three (3) rounds of tort reform, the landscape concerning Plaintiff’s filing of a Complaint and then proceeding to a jury trial has been radically altered.

A plaintiff may set out various tort claims in a complaint. The lawyer now has “additional duties” to investigate claims prior to proceeding. Additionally, there are now new risks associated with various tort reform statutes. If the complaint or any portion of it is to be filed against a professional in Georgia, the plaintiff's attorney must retain an expert and obtain an OCGA § 9-11-9.1 affidavit (opinion) prior in time to filing or the complaint or the complaint is subject to dismissal.  That dismissal is a non amendable defect that is fatal to the refilling of the cause of action. [3]

As is similar to pre-1987 practice, the plaintiff still must survive a motion to dismiss and/or a motion for summary judgment. Each of plaintiff's counts are now subject to the additional scrutiny of OCGA § 9-15-14. That is, throughout the litigation defendant may challenge (as a collateral matter) the basis for any claim or count pursuant to OCGA § 9-15-14 (that each Count or action by counsel is “frivolous,” or so unnecessary as to amount to harassment).

After 1989 litigants face the potential challenge under OCGA §§ 51-7-80 through 51-7-85 of receiving a challenge that, if defendant prevails in the main case, the party and counsel may be sued for any damages (non economic) that are found to be different, special or in excess of the attorney's fees. [4] Claims merely for attorney’s fees are limited to OCGA § 9-15-14 and now the small tail end of OCGA § 9-11-68.

Prior to 1987 an expert qualified in the field, could testify on the plaintiff's behalf. Now, the parties are required to retain and provide testimony only from experts that fit within the parameters of OCGA § 24-9-67.1.   Georgia Daubert, OCGA § 24-9-67.1, [5] provides significant additional impediments to the obtainment of testimony for both perspectives (plaintiff and defendant) in Georgia courts.  "Georgia Daubert," dictates than an expert must have actively worked in the same field as the defendant (or party opposed) within the three of the last five years.

With the constitutional support and Opinion in Smith, et al. v Baptiste, et al., 287 Ga. 23, 694 S.E.2d (2010), plaintiffs are now required predict the future concerning whether a jury verdict will be within 75 percent to 125 percent of the offer made by the defendant to plaintiff. [This statute is mutual; plaintiff may make an offer to a defendant].

It would appear that, notwithstanding all the additional tort reforms from 1987, 1989 and 2005, a defense verdict or failure to adequately predict the future pursuant to OCGA § 9-11-68, now subjects plaintiff to all defense fees from the date of the rejected offer to jury resolution. Is it any wonder then that litigants now shy away from jury resolution?

V. A VIEW INTO THE FUTURE

It may be that we suffer from a lack of expansion of judicial resources. If in the 1950's the United States had not moved from two lane roads and two and three lane federal highways to the interstate system, we would be left with a byzantine road system that resembles that around San Palo, Brazil and the road system in India.

The United States Congress wisdom (and this actually was wisdom) enacted the Interstate Highway System. [6]  That system has vastly expanded the ability to transmit goods, services and people through the United States. Our court system by comparison has never achieved any such expansion such as the interstate road system, but continues to limp along on two lane roads in the same manner that they existed in the 1950's and 1960's. Nor has there been the expansion of judicial resources and particularly “in court time” resources that anywhere matches the growth of both the numerical claims and the complexity of the claims filed in court.

Additionally, while we continue to live in an increasingly information driven and complex system we persist in (perhaps because constitutionally we are required to) drive the resolution of our jury matters into the hands of 12 or 6 "peers" being nothing more than individuals drawn from a large jury pool. Though it would require constitutional modification and perhaps several statutes, this author thinks that both more access to some type of alternative bench or jury resolution is neede.  And, though this is a thought found nowhere in the literature, as the experts have been driven into more information and more complexity and must comply with more "Daubert" type standards, jurors have not kept the pace. Perhaps, the time has come for we as a society to consider creating, employing and maintaining professional jurors who are at least as skilled as Daubert experts. On that one, though, I am not holding my breath.

VI. CONCLUSION

This article has shown that contrary to the information disseminated by the popular press both the filing of tort cases and resolution by jury trial of tort cases has declined precipitously in the last 30 years. The decline has been so severe that the jury trial is either extinct or as endangered as the Siberian Tiger. This article has shown that while both English common law, the Constitution of the United States and Georgia Constitution provide us with the right to a jury trial they have become practically unobtainable in a general tort setting. This article has shown that the statistics both in the administrative courts and in respected law journals show that the decline (absolute decline) of jury trials is a statistical fact and not mere speculation. Jury trial resolution in federal court now accounts for less than 2 percent of all claims filed.

It is poignant perhaps that the one jury trial in Erie v. Tompkins, a jury trial that changed the very fabric of our entire state and fedearl court system would never occur in today's modern federal court.  





Hugh Wood, Esq.
Wood & Meredith, LLP
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[1]
Erie Railroad Co.v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), mandating that a federal court, sitting in diversity jurisdiction must apply state substantive law. It overturned, Swift v. Tyson, 41 U.S. 1 (1842), and the then main case on point, Black and White Taxicab & Transfer Co. v. Brown and Yellow Taxicab & Transfer Co., 276 U.S. 518 (1928) and the development of a federal common law separate from state substantive law. Poor Mr. Tompkins got his Jury trial in the Southern District of New York and recovered $30,000. However, in reversing the case and applying Pennsylvania substantive law, Mr. Tomkins lost his jury victory.

[2]
Assize of Clarendon, 1166, The Avalon Project, Documents in Law, History and Diplomacy, The Lillian Goldman Law Library, Yale Law School. Various Documents available online.

[3]
The failure to file a OCGA § 9-11-9.2 Authorization Form in a medical malpractice case may also subject the claim to dismissal.

[4]
In Ga. L.1989, p. 408, § 2, the General Assembly created a new cause of action for abusive litigation and codified it as OCGA § 51-7-80 et seq., which became effective on July 1, 1989, and which provided for procedures that were part of the elements of the action. OCGA § 51-7-80 et seq., as a new statutory cause of action, replaced several existing common law actions: malicious use of process; malicious abuse of process; and a claim under Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986). Since OCGA § 51-7-80 et seq. is in derogation of common law, then it must be strictly construed. Kirsch v. Meredith, 211 Ga.App. 823, 825, 440 S.E.2d 702 (1994). Unlike OCGA § 9-15-14, which is a court-imposed sanction for misconduct in litigation, OCGA § 51-7-80 et seq. is an independent cause of action based upon the successful termination of the action upon which it is based and is not procedurally ancillary and post-judgment, as is OCGA § 9-15-14, except when only attorney fees are sought under OCGA § 51-7-83(b). Hutchison v. Divorce & Custody Law Center, etc., 207 Ga.App. 421, 423, 427 S.E.2d 784 (1993). An action for abusive litigation must be brought as a separate and distinct action where damages are sought; however, when only attorney fees in the original abusive litigation are sought, OCGA § 51-7-83(b) provides that "the procedures provided in Code Section 9-15-14 shall be utilized." Hallman v. Emory University, 225 Ga.App. 247, 483 S.E.2d 362, 364-365 (1997).

[5]
Constitutional and applicable to all Georgia cases in HNTB Georgia, Inc. v. Hamilton King, et. al., 287 Ga. 641, 697 S.E.2d 770 (2010).

[6]
The Federal-Aid Highway Act of 1956, popularly known as the National Interstate and Defense Highways Act (Public Law 84-627), was enacted on June 29, 1956.


END

1 comment:

Hugh Wood said...

The Fulton County Daily Reporter reports in 2011 that of cases that do go to trial in Georgia, the following statistics are relevant: These statistics only apply to motor vehicle accidents: Metro Atlanta: 75.47% for Plaintiff, 24.53% for Defendant. Verdicts in the Rest of Georgia outside of Metro Atlanta: 81.05% for Plaintiff, 18.95% Defense. I find this information to be inconsistent with my information, but they use CaseMetrix as their citation.