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February 27, 2020 Practice Points

The Demise of the Civil Jury Trial

Should we care?

By Hon. Mark A. Drummond (Ret.)

Dear Colleagues,

Back in 1996, I was a trial lawyer, and I began writing for this publication. I went on the bench in 1999, and for the past 20 years I have brought you stories from the bench. By the time this column posts, I will have come full circle and hope to join you on the other side of the bench as a trial lawyer once again. When not in court, I will be working as a codirector for the Civil Jury Project at NYU School of Law.

Jury trials are disappearing around the country

Jury trials are disappearing around the country

Getty Images

“[The project] studies why jury trials are disappearing, asks whether we should care, and suggests things that could be done to reverse the trend,” says Project Executive Director Stephen D. Susman, a longtime ABA Section of Litigation member and legendary trial attorney (emphasis added).

In my last column, I wrote that jury verdicts drive all litigation decisions. With no jury verdicts we lose the benchmarks that each trial attorney must look to in determining exposure, settlement, or alternative dispute resolution. Without clients willing to go to trial and attorneys willing to take cases to trial, we would have absolutely no benchmarks.

The most colorful dissent I have ever read was by the legendary dissenter Justice Michael Musmanno, in a Tropic of Cancer obscenity case. For a chuckle, take five minutes and read it. A close second, with much less railing and much more thought, is the case of Roberts v. Stevens Clinic Hospital. The opinion swings from citing Averroes’ commentaries on Aristotle to the spire on the Great Cathedral in Salisbury, England, back to Hamlet. It is also the perfect case to frame up why we should care about the demise of civil jury trials.

In Roberts, a couple had two children from the wife’s previous relationship. The couple wanted to have a child of their own, and a baby boy was born. After that, the wife had a hysterectomy. The majority described the little boy as “the darling of the whole family.”

The parents took the little boy to the defendant doctor after an episode of rectal bleeding. The doctor suggested a sigmoidoscopy. He told the parents it was a simple procedure that might detect a polyp, which could be snipped off and may not even require a stitch.

Without advising the parents, the doctor also performed a biopsy and, in doing so, perforated the boy’s colon. The boy died of peritonitis. The court described the negligence of the defendants as “palpable” and “clear-cut.”

After a 2-week trial, the jury returned a verdict of $10 million. An appeal followed, and the majority reduced the award to $3 million. In cutting the award, the majority delved into issues of jury deliberation, trial strategy, settlement negotiations, and the economics of litigation. The scope of topics addressed is simply breathtaking.

With no jury verdicts we lose the benchmarks that each trial attorney must look to in determining exposure, settlement, or alternative dispute resolution.

The court first asked counsel to outline the settlement talks that preceded trial! The court noted that settlement discussions are generally inadmissible, but went on to state, “[W]e believe that settlement discussions have some bearing on the necessarily subjective criteria that appellate courts use to determine a proper remittitur, because such a determination affects future settlement negotiations” (emphasis added).

Counsel also disclosed that insurance coverage was $10.25 million. Two months before trial, the plaintiff offered to settle with both defendants for $5 million. The defendants’ first settlement offer of $100,000 was made on Friday before the Monday trial. On Saturday, the offer was increased to $125,000, and after one week of trial, it went up to $220,000.

The majority first noted that many errors claimed by the defendants were waived due to no timely objection. The majority speculated that no objections were made due to defense counsel’s calculation that a local jury would not award large damages against a local practicing physician and the community’s only full-service hospital.

The majority stated that “[t]heir trial strategy . . . was reasonable, and although defense counsel’s failure to object makes it easy for us to write this opinion without its assuming the dimensions of Averroes’ Commentaries on Aristotle, we can say . . . that the result . . . would not be otherwise had objections been made with the regularity of a pendulum.”

The majority then turned to the claim that the trial court erred by not recalling the jury to inquire about a rumored, initial vote to award $250 million. The court found that, even if $250 million was discussed, it was irrelevant because the verdict was $10 million. However, the court footnoted that any discussion of $250 million probably implied “innumeracy,” which is the equivalent of numerical illiteracy. The court cited Scientific American magazine on this issue.

The court stated that “in a nutshell” the reason it was reducing the award was that the plaintiff’s counsel had implied that the jury was to place a value on the boy’s life. Ironically, under the statute, awards were allowed for “sorrow, mental anguish, and solace which may include society, companionship, comfort . . ..” One might ask aren’t these just different words to describe the “value” of a beloved child to his family?

The defense made no objection to the “value” argument at trial. But the majority stated that “[i]n the roughly seven seconds available to counsel to make the strategic decision whether to object, it probably dawned on counsel that an objection and ‘curative’ instruction would serve only to reinforce plaintiff’s counsel’s point.”

However, the court said that to send the plaintiff back to square one because of an excessive verdict would be unfair. The court asked rhetorically what would be the highest jury award that would pass muster and concluded, “Our answer, after substantial collegial discussion, is $3 million and that is the amount that we will allow to stand” (emphasis added). However, the majority also gave the plaintiff the option of a new trial. The court stated that its decision was “grounded in sound public policy, which we will now proceed to discuss.”

The court noted that, without years of pretrial motions and discovery, “defense law firms cannot build a file to justify fees, and large fees are necessary to sustain the overhead of large firms.” The court then stated that “[w]ithout the occasional jury award that is at least ten times greater than what the parties would have settled for immediately after the tragedy, there would be no incentive on the part of clients to temper the file building, anti-settlement proclivities of their lawyers by urging quick payment of just claims.”

The doctor’s counsel said during oral argument that $300,000 would have been the outer limit of an appropriate jury award. The court then footnoted that “[c]ertainly [$300,000] would have been an appropriate settlement figure if offered within sixty days of Michael’s tragic death.” Seriously?

So what have trial attorneys learned from this case about going to trial as opposed to mediation? They have learned that a local jury will return a large verdict against a local doctor and hospital. They have learned that the jury verdict is ironically close to the policy limits for the insurance that the doctor and hospital paid for over the years.

What else has been learned will have to wait until my next column, which will reveal how the spire of the Great Cathedral in Salisbury, England, could possibly have any connection to a West Virginia wrongful death case.


Hon. Mark A. Drummond (ret.) is an associate editor for Litigation News.


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