By MARK CURRIDEN
Judge Patrick Higginbotham of the 5th U.S. Circuit Court of Appeals said in 1997 that civil jury trials were headed to extinction.
“There are certain elites in this country who don’t trust juries,” Higginbotham, a Reagan appointee from Dallas, said at the time. “The future of our jury system is very much in danger.”
Most lawyers and judges scoffed at the suggestion. After all, no state in the country trusted citizen juries to resolve personal and business disputes more than Texas.
Since Higginbotham’s warning, civil jury trials have plummeted to 40-year lows.
In 2012, there were fewer than 1,200 civil jury trials in state district courts in Texas. That’s only a 1 percent decline from 2011, but a 64 percent decline from 1997, when there were 3,369 jury trials.
The federal courts in Texas have seen an equally significant decline. U.S. district court judges conducted 360 civil jury trials in 1997 but only 135 last year.
“This means justice in Texas is at a 40-year low,” said Dallas trial lawyer Frank Branson.
Although plaintiff’s lawyers have cried foul for more than a decade, lawyers representing large businesses have suddenly started sounding the alarm.
Distrust of juries
“There’s this distrust of juries, which I truly don’t understand,” said Jeff Lowenstein, a partner at Dallas-based Bell Nunnally & Martin. “Nobody works harder or feels more deeply about dispensing justice than 12 of our fellow citizens.
“So many lawyers counsel their business clients to avoid juries because they are too risky, and that’s just not true,” Lowenstein said. “This is one of those situations where we don’t realize what we had until it’s gone.”
Dan Worthington, president of the Texas Association of Defense Counsel, an organization of lawyers who represent insurance companies, manufacturers and other businesses in the state, said the decline in jury trials is a “profoundly negative” trend for individuals and businesses alike.
“This is an unhealthy trend for those seeking justice,” said Worthington, who practices law in McAllen. “Unfortunately, I predict this trend is going to continue.”
Worthington and legal experts say the dramatic drop in jury trials isn’t the result of fewer disputes. Instead, they say the ability to have disputes decided by a jury has been severely curtailed by a combination of factors in the last two decades, including tort reform and appellate court decisions.
They also say thousands of civil complaints once heard by juries are now resolved pretrial in mediation or have been pushed into the private world of arbitration.
Texas juries decided 12 percent fewer personal injury and medical malpractice cases, 15 percent fewer business disputes and 50 percent fewer product liability cases in 2012 compared with 2011. Statistics show that juries in 2012 sat in judgment of 88 percent fewer product liability claims — including cases of faulty medical devices, dangerous prescription drugs, defective tires and accident-prone cars — than they did in 1996.
“People get very upset when other constitutional rights are taken away or limited, but we are witnessing our Seventh Amendment right to a civil jury severely attacked, and people don’t seem to care,” said Houston lawyer Joseph Ahmad.
Victor Vital, a litigation partner at Greenberg Traurig in Dallas, said the cost of taking a lawsuit to trial has made jury trials cost-prohibitive.
“The No. 1 culprit is the extraordinary cost of discovery, especially e-discovery,” he said. “Business clients evaluate the financial risks and the costs.”
Vital said judges need to be more of a gatekeeper on the discovery demands of the lawyers, which will keep the cost of litigation lower and encourage more cases to go to trial.
To address the issue, the Texas Supreme Court implemented its new “expedited trial” rules for cases in which $100,000 or less is in dispute. The new rules limit discovery and push cases to trial quicker.
But many lawyers contend that the Texas appellate courts are a significant part of the problem. They say the justices have widened the “no evidence review standard” by taking issues that were once considered questions of fact decided by juries and making them questions of law decided by judges.
Even the U.S. Supreme Court has done little to protect civil trials. Last week, for example, the justices ruled that corporations can require customers to litigate their claims individually in arbitration rather than as a class action before a judge or jury — even when the legal cost of arbitration can be more costly than the claim itself.
“The appellate courts in Texas have become so conservative and so favoring defendants that I advise my business clients who have a rock-solid case that we should file the lawsuit in another state,” said lawyer Adam Schiffer of Houston.
“I know that if I get a good jury verdict for my business clients — a verdict that is fully supported by the facts and the law — that there is a significant chance that the Texas Court of Appeals or the Texas Supreme Court is going to take it away from us,” Schiffer said.
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