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The Evolution of the Summary Jury Trial: A Flexible Tool to Meet A Variety of Needs

Are summary jury trials a viable forum for dispute resolution?  The National Center for State Courts studied summary trials in six state courts to understand how these programs work and to determine the benefits and detriments of this approach to dispute resolution.

Paula Hannaford-Agor
Director, Center for Jury Studies, National Center for State Courts

Nicole L. Waters
Senior Court Research Consultant, National Center for State Courts

Recent court reform efforts have focused on procedures to alleviate backlog and delay, excessive procedural complexity and litigation costs, and the associated uncertainty in outcomes for civil cases. One technique—the summary jury trial—grew out of both alternative dispute resolution (ADR) programs and efforts to provide litigants with sufficient information to make informed decisions about the merits of settlement, but ultimately evolved into a number of different varieties. U.S. District Court judge Thomas Lambros (Northern District of Ohio, 1967-95) is credited with the original idea for the summary jury trial, which he used to resolve two personal-injury cases.[1] In spite of numerous attempts by Lambros, the parties had refused to settle, believing that each could obtain a better outcome from a jury trial. It struck Judge Lambros that if the parties could preview what a jury would do, they would be more likely to settle. The procedure that Judge Lambros developed was essentially an abbreviated, nonbinding jury trial before a six-person jury selected from a ten-person jury panel.

From 1980 to 1984, the Northern District of Ohio selected 88 cases for summary jury trials. More than half ultimately settled before the summary jury trial was held, and 92 percent of the remaining cases settled after trial. Judge Lambros estimated that the procedure saved the court more than $73,000 in jury fees alone. He reasoned that the savings to litigants in reduced attorney fees and trial expenses would be considerably more. In Judge Lambros’s eyes, the summary jury trial was a form of ADR that explicitly incorporated the concept of trial by jury, but eliminated the risk of a binding decision or the expense associated with a lengthy jury trial. The success of the summary jury trial, according to Judge Lambros, depended on its procedural flexibility. He warned that the rules adopted by the Northern District of Ohio were not absolute rules to be followed in every case, much less in every court. He encouraged other state and federal courts to adapt the summary-jury-trial format to comport with local circumstances.

NCSC Study of Summary Jury Trial Programs

Over the next three decades, a number of state courts across the country learned of Lambros’s summary jury trial procedure and implemented variations to improve civil case management. In 2011 the National Center for State Courts (NCSC) visited six state courts that had implemented some version of the summary jury trial to learn how these programs operate, what advantages they offer civil litigants, what challenges they introduce to civil case processing, and how well they have been accepted by the local civil bar.[2] In four of these jurisdictions, the programs have been in operation for a decade or more, providing a solid track record for assessing their respective advantages and disadvantages. The programs in the remaining two jurisdictions were implemented more recently and focused on emerging issues such as ensuring access to the courts, especially for lower-value cases, and bolstering rapidly deteriorating attorney trial skills due to underuse in the contemporary civil justice system.

During the site visits, NCSC staff interviewed judges, lawyers, and court staff who developed and supervised the programs or who participated in cases that were adjudicated under those programs. NCSC staff reviewed program documents, including procedural rules, training materials, marketing information, and caseload statistics. Where possible, NCSC staff also observed one or more summary jury trials in each jurisdiction (see the figure for a breakdown of key features about the programs).

Evolution of a Summary Jury Trial

These programs share a few basic characteristics. They are designed primarily for factually and legally straightforward cases involving lower-value damage awards that require less discovery and are typically trial ready in a short period of time. Live expert testimony is generally not required to explain the nuances of the evidence to the jury. The parties typically stipulate to the admission of documentary evidence to support their respective positions at trial. The program procedures generally offer an earlier trial date, simplified trial procedures, or both. All of the programs can accommodate more complex, higher-value cases, but these do not participate as frequently.

A key difference across programs is the judge who presides over the summary jury trial. The Oregon, California, and New York programs all employ their respective court’s regularly appointed civil-trial judges. In the Bronx County program, 2.5 judges conduct summary jury trials full-time. The California program’s marketing highlighted that these trials “are real jury trials before real judges” to differentiate them from other forms of ADR. The Maricopa County and Nevada Eighth Judicial District Court programs assign cases to judges pro tempore in their respective courts. In Charleston County, parties contract with experienced local attorneys to serve as “special referees” in summary jury trials.

The relationship of these programs to ADR programs is another difference. One Charleston County attorney described that program as a form of ADR insofar that it is voluntary, the trial is not conducted on the record, and the jury’s “verdict” is not officially recorded by the court or filed as an enforceable judgment; instead, verdicts are reported as “settled” on the court’s case management system. The Maricopa County and Nevada Eighth Judicial District Court programs permit cases to opt out of mandatory arbitration, and the verdicts are binding and enforceable on the parties, but the programs themselves are administered as separate tracks within the courts’ respective ADR programs. Indeed, one criticism of the Maricopa program is its status as “just another ADR track” that lacks the procedural rights granted to litigants in regular jury trials. The California and New York programs characterize themselves as jury trials, albeit with some procedural restrictions, including appeal rights. The Oregon program, which focuses mainly on an expedited pretrial process, features a trial before a six-person jury with all of the procedural rules accorded to civil litigants.

Evolution of a Summary Jury TrialIn spite of different procedures and operations, the courts that developed these programs have implicitly adopted one of two underlying approaches about how these programs reduce costs and increase access to jury trials. The first approach streamlines the pretrial process by offering incentives for litigants (e.g., an early trial date, priority placement on the trial calendar, or at least a firm trial date) in exchange for restrictions on the scope and the length of time to complete discovery. Attorneys therefore focus on the key disputed issues and do not expend more money than the maximum value of the case. Because discovery is distilled down to the most critical factual and legal disagreements, the trial requires less time, fewer witnesses, and less documentary evidence. The Oregon and California programs explicitly adopt this approach. The Charleston County program moves the case off the court’s rolling docket and offers litigants the incentive of a firm trial date. The Nevada program sets the trial date within six months of the parties’ entry into the program, rather than waiting up to four years for a regular jury trial.

The second approach streamlines the trial itself, which indirectly affects the pretrial process. The premise is that trial attorneys will not expend substantial amounts of time and effort to gather evidence that cannot be used at trial given constraints on time, the number of live witnesses, the form of expert evidence, or in the case of the Nevada program, restrictions on allowable attorneys’ and expert witness fees. The Nevada, Maricopa County, and New York programs are all examples of this approach. Of course, several programs adopt elements of both approaches by placing restrictions on both the pretrial and trial procedures.

Meeting a Variety of Different Needs

The most striking aspect of these programs is the variety of underlying problems in civil litigation they were intended to address. Much of the impetus for the Charleston program was the difficulty litigants faced in securing a firm trial date on the court’s “rolling docket” trial calendar. The Charleston County program allowed litigants to secure the services of an attorney to serve as the special referee, using available jurors and courtrooms to conduct the trial itself. The Nevada program addressed the problems of excessively high litigation costs due to expert witness fees and long delays in scheduling trials. The Maricopa County program focused on dissatisfaction with mandatory arbitration. The Oregon program addressed complaints about civil case processing identified in a 2009 study of vanishing trials. A unique feature of the New York program is the creation of a statewide coordinator responsible for education and outreach, as well as for support of local implementation efforts. The California program features extensive rules and procedures detailing the steps and offering model versions of motions, orders, and stipulations for use by trial attorneys.

Features of a “Successful” Summary Jury Trial Program

The intent to solve local problems and concerns is no guarantee that a summary jury trial program will ultimately succeed. Looking across the six programs, several factors stand out as fundamental to their success. The first is strong judicial support. Or, more to the point, weak judicial support can cripple a program. Maricopa County’s program provides the most concrete example as its popularity fizzled following the retirement of Judge Kaufman, its founder and most adamant supporter. Similarly, the slow starts for expedited jury trials in California can be partly attributed to the lack of consistent judicial knowledge of and marketing for the program across the state. In contrast, much of the success of the New York program is due to the creation of a statewide coordinator position to provide support to local programs.

Strong judicial support for a program does not have to involve a personal investment on the part of the entire bench. The Charleston program, which relies on attorneys to serve as special referees, garnered approval by the local trial bench by diverting civil cases from the court’s trial calendar, allowing the judges to reallocate their time to reducing a longstanding criminal case backlog. The Nevada program, which employs judges pro tempore, relieves trial judges of responsibility for pretrial management while giving them credit when cases are successfully resolved. That program is also financially self-sustaining, allowing the court to allocate scarce resources to other programs.

State Court AdministratorSeveral of the programs were initiated in response to broad dissatisfaction by both the plaintiff and defense bars with the fairness of mandatory arbitration decisions. The comparison of arbitration decisions with short-trial verdicts in the Nevada program revealed that juries rarely decided cases comparably to arbitrators. While the majority of jury verdicts in 2011 favored defendants over plaintiffs, the jury returned a verdict that was more favorable than the arbitration decision in approximately 20 percent of short trials. Moreover, the direction of verdicts favoring one side has reportedly shifted from time to time. Consequently, both the plaintiff and defense bars consider their short-trial program an objectively fair option for clients. Over the past four years, plaintiffs have prevailed in 58 percent of the approximately 1,500 trials conducted in the New York program, which also suggests a relatively neutral venue for litigants.

Procedural requirements also affect local bar perceptions of fairness. Several of the jurisdictions had arbitration-appeal penalties providing awards of reasonable expert-witness or attorney fees if the jury verdict failed to improve the appellant’s position. Maricopa County had the most stringent rule, requiring arbitration appellants to better their outcome by at least 23 percent. The arbitration-appeal penalty was less severe in other jurisdictions, reducing the risk for litigants. In addition, the Maricopa County, New York, and California programs greatly restrict the right to appeal. Attorneys in some of those jurisdictions noted that this feature can discourage participation as it necessarily closes off future options. In contrast, the Nevada and Oregon programs permit litigants to appeal a summary jury verdict. It is extremely rare that a litigant does so, but litigants do not perceive that they are entering an arena with no emergency exit.

Finally, many of the programs attributed their success to their recognition and accommodations to various segments of the local civil bar, especially the differing incentives for participation within the defense bar. For example, in-house lawyers representing insurance carriers and institutional clients noted the importance of periodically “testing the market”—that is, trying cases to local juries for the specific purpose of establishing the range of reasonable settlements in similar cases. Yet the policies of national insurance carriers frequently differed on the degree of autonomy and discretion granted to in-house lawyers to make judgments about whether to bring the case to trial. For the most part, lawyers with greater autonomy seemed more supportive about these programs, if only because they provided more options for resolving cases. Retained defense attorneys faced a different set of incentives and disincentives. Their clients were more likely to be motivated to keep costs down, so the option of earlier trials that could be completed in a single day generally worked in the programs’ favor. Younger, less experienced lawyers find these programs attractive insofar that they provide an opportunity for professional development, but they are also realistic in that preparing for a summary jury trial involves a great deal more time and effort than doing so for an arbitration hearing. On the other hand, their clients may also be more risk averse and less likely to participate without a clear financial or strategic advantage in doing so.

Conclusions

The sheer number of variations on the summary jury trial makes it difficult to draw firm conclusions about its ultimate impact on the civil justice system. Judge Lambros’s procedure was a useful tool for facilitating productive settlement negotiations in complex cases, but the problems confronting civil litigation in the state courts today—disproportionately high pretrial and trial costs, backlogged trial calendars, and declining numbers of lawyers with adequate trial skills—appear more intractable and less amenable to easy fixes. That the summary jury trial concept has proven so adaptable bodes well for its future. Most of the programs were developed as statewide initiatives or are expanding statewide, which speaks volumes about the confidence of state judicial policymakers about their potential merit. Nevertheless, courts considering such programs should undertake their design and implementation with great care.

The first word of advice is to be thoughtful about identifying the specific problems that the program is intended to address. The focus should be placed on problems that contribute to expense, delay, and unjust outcomes for all litigants, not just the pet peeves of one particular segment of the civil bar. In some instances, the problems may be more effectively remedied by fixing the immediate problem rather than creating a program to work around the problem. Nevertheless, some problems may be less amenable to easy fixes—especially those resulting from inadequate court resources to manage increasing caseloads. In that case, a program designed to alleviate those problems or avoid them entirely may be a useful approach.

Evolution of a Summary Jury TrialIn designing the policies and procedures, be sensitive to the need for sufficient flexibility to fit into the local legal culture. In fact, it is wise to actively solicit input from the local bar. Engaging experienced and well-respected representatives of all segments of the civil bar can result in a program that will meet their respective needs, avoid introducing new problems, and create an objectively fair venue in which to resolve cases. These individuals can also help market the resulting program to their colleagues as well as their clients.

One issue to which the program organizers should be especially attentive is the extent to which the program provides a venue in which lawyers from both the plaintiff and defense bars can collaborate to streamline pretrial and trial preparation. To various degrees, the six programs examined by NCSC all relied on the ability of lawyers to identify and focus on the key elements of their respective cases and effectively negotiate agreements with their opponents to restrict the evidence related to those elements. Depending on the extent of existing collegiality in the local bar, developing these skills into effective long-term habits may require a substantial amount of time.

A substantial part of the program design and implementation should include planning for the program’s long-term sustainability, especially its ability to adjust to changing conditions. At minimum, the long-term plan should include systematic documentation about the number and outcomes of trials conducted under the program; periodic reviews of the program’s procedures and policies to ensure its continued effectiveness; ongoing training and marketing efforts to keep judges, lawyers, and litigants aware of the program’s benefits; and succession planning for the program leadership and organizers. Programs that can manage these facets are likely to see the option of a summary jury trial become a valuable tool in the civil justice system for years to come.


[1] A complete description of Judge Lambros’s summary jury trial procedure is available at 103 F.R.D. 461 (1984).

[2] Detailed descriptions of the summary jury trial programs examined in the NCSC study are were published in Hannaford-Agor et al., 2012.