The rate at which trials are used to resolve lawsuits has dropped significantly over the decades. We are now at the point where less than 1% of cases are settled via a trial. In the 2019-2020 court year (July to June), in the Civil Part of Law Division in Superior Court (cases with claims above $15,000), there were 705 trials (561 by juries, 144 by judges) out of 71,848 total cases resolved. Trials amount to 0.98% of case dispositions (0.78% by jury trial). Some of that may be caused by the COVID closure, but trial rates have long run under 2% in NJ.
The American Bar Association recently published the results of a study to determine why jury trials are disappearing. This was done primarily through surveys of lawyers and judges. Some of the reasons:
- The preference of litigants to settle rather than go to trial
- Use of arbitration clauses in standard contracts, removing disputes from the court system altogether
- Increased use of mandatory and voluntary alternative dispute resolution (namely mediation) in court settings
- More cases dismissed on motions such as summary judgment, especially in federal courts
- Tort reform initiatives
The participants were asked about the predictability, speed, cost-effectiveness, fairness, and preference of four different case resolution methods: mediation, arbitration, jury trial, and bench trial. In each one of those methods, mediation was the winner (in some categories, by significant amounts). Jury trials ranked lowest on predictability, speed, and cost-effectiveness, yet came in second to mediation on preference. The rankings for mediation was pretty consistent across the three groups who participated in the survey: civil judges, plaintiff, and defense attorneys.
Another question asked whether pressure by judges to settle cases rather than go through a trial was a contributor to the disappearing jury trial. The results would best be summed up as “a little bit.” Where was the pressure coming from? For plaintiffs, the top areas (in order) were their own attorney. mediators, judges and family members. Not surprisingly, judges didn’t think they were the cause of pressure to settle. For defendants, it was a little less clear cut: mediators, judges, their lawyer, then business associates. For defendants, the answers varied far more by who submitted the survey.
The participants in the system, not surprisingly, do argue in the survey results that trials should be kept. They argue that they are fair and cost-effective.
So this all begs many questions that the study does not attempt to answer:
- Are trials the best way of resolving civil disputes?
- Why do we have a massive and expensive system in place to try cases when we really do not?
- Why isn’t more focus placed on mediation in the court setting when all the survey participants favor it?
Courts at all levels need to revisit the processes they have in place to see if it meets modern demands for dispute resolution. Jury trials go back hundreds of years.
If you would like to resolve your case using mediation, contact me to discuss it further.