See you in (Practice) Court!: The Benefits of Summary Jury Trials

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The United States has typically been viewed as a sue-happy society; that is, we Americans “will sue at the drop of a hat.” However, even with over 83 million cases filed in state courts alone in 2017, the United States comes in only at #5 of the world’s most litigious countries. Despite the occasional frivolous lawsuit, Americans have a deep-set fear of litigation because it is costly, inefficient, and largely comes down to how a group of 12 random people is feeling that day. Only 3% of civil cases filed subsequently go to trial; the rest are resolved by some form of alternative dispute resolution. Of these, summary jury trial is the only form of ADR that allows for an actual jury.    

In the 1980s, District Court Judge Thomas Lambros developed the idea for summary jury trials to encourage settlements. He found that parties resisting settlement believed they would fare better in front of a jury. A summary jury trial allows parties to present abbreviated versions of their cases to real juries, but the jury verdict is nonbinding—it only serves as a preview for what would happen during a full-fledged trial. From 1980-1984, 92% of cases ultimately settled after summary jury trials, and the court saved more than $73,000 just in jury fees.

The rules governing summary jury trials are court-specific, but just think normal trial at 100x speed (most are finished within a day). Generally, a small jury (usually six) is empaneled from the court’s normal jury pool for the day. To ensure they take their roles seriously, the jurors are not told that their final verdict is only advisory until the trial concludes. Attorneys each have an hour to present their case: the rules of evidence are relaxed and there is not much time for expert witness testimony. The judge will charge the jury and give instructions, and the jurors will deliberate and return their verdict. In some cases, jurors are further separated into panels for deliberation, which is helpful to determine a range for appropriate damages. The attorneys may consult with jurors about the verdict, and then retire for settlement negotiations. If a settlement is not reached, neither the occurrence, nor the result of the summary jury trial is admissible in a future trial.

Although summary jury trials cut down legal fees tremendously (for both preparation time and court time), they are not frequently used. In a recent poll conducted by the National Judicial College, 87% of judges (of the 355 responses) do not use summary jury trials. Many believe that they take valuable court resources away from traditional trials, further congesting the court’s docket, especially if the parties still refuse to settle. Attorneys face an additional risk of revealing their trial strategy that may be used against them in subsequent litigation if the parties don’t settle. The time constraints also limit what cases may use summary jury trials—complex legal issues or fact patterns and cases requiring expert testimony typically prefer traditional trials.

Unfortunately, courts do not report statistics on the use of summary jury trials, which may explain why clients haven’t heard about them or are resistant to using them. However, the judges and attorneys that have used summary jury trials “have fallen in love with the system.” They provide all of the benefits of a traditional trial, without the risk of a binding verdict. Summary jury trials may also be more efficient than mock juries and focus groups because the attorneys will still have to present their case to a real jury, which may be different than their test groups. Consulting with jurors after the case also allows attorneys to learn how real jurors would have decided their case, the strengths and weaknesses of their arguments, and may provide some insight on juror biases (and how attorneys can reduce them in the future).