By Louis W. Voelker
Recently, Robert Dignam, a Lake County trial attorney and mediator, awakened me during his CLE presentation (just kidding, Bob!) by referencing my December 2015 article on the declining number of civil jury trials in Indiana. And so was born the idea to revisit those statistics and their implications. Let me first briefly recap the original article.
Historically, the right to trial by jury of civil claims was sufficiently important to the Founders that it is ensconced in the Seventh Amendment to the United States Constitution. Likewise, the drafters of our state Constitution provided unequivocally in Article I, Section 20 of the Indiana Constitution: “In all civil cases, the right of trial by jury shall remain inviolate.” Although a large percentage of attorneys would likely cite the right to trial by jury as a critical element of the judicial systems of our state and our nation, the implementation of that right is beginning to appear more conceptual than tangible.
In 2015, I reviewed statistics on civil cases from the Indiana Supreme Court 2014 Indiana Judicial Service Report, Vol I: Judicial Year in Review, comparing data from 2005 with that of 2014. In 2014, there were 11,417 new civil tort cases filed, a 16% decrease compared to 2005’s 13,588 filings. By comparison, only 209 tort cases were concluded by jury trial in 2014, down more than 50% from the 486 claims tried to jury in 2005.
So, where are the numbers now? The most recent statistics available can be found in the 2017 report. That report shows that new tort filings in 2017 numbered 11,879 — up about 4% from 2014. Yet despite essentially flat numbers for new filings, the number of civil tort cases disposed of by jury trial has continued to fall. In 2017 there were only 165 trials, a decrease of 20% in merely three years.
I continue to find this concerning, and I think even the strongest advocates of mediation should, too. The decline is no doubt due in part to the success of mediation — or at least its ubiquity. But might it not ultimately affect the mediation process as well? One motivator mediators employ to encourage settlement is that mediation allows the parties to maintain control over the outcome, rather than leaving it to a jury. We lawyers warn our clients that you cannot know what any given jury will do, but an experienced trial attorney will also tell you that juries usually “get it right.” As a result, a common benchmark against which parties gauge their decision-making is a comparison of jury results in similar cases based either on hard data or anecdotal evidence. I continue to believe that trials help lawyers on both sides of the bar know what our communities consider to be reasonable or unreasonable conduct. Trials also produce the statistics from which we try to extrapolate the value of cases we seek to settle. Without them, no longer will either the reasonableness of the conduct or the appropriate measure of damages be grounded in any input of the general public.
That fewer trials means fewer citizens having direct input into our justice system not only affects mediation – it affects communities. As I suspect our judges would agree, most jury members with whom I have spoken were glad they had served and left the experience with a greater appreciation of our system. They no doubt share their impressions with others, which in its own way helps maintain faith in our system. This impact must be declining, and that loss, too, is unfortunate.
Trials are the training ground in which this generation of lead trial lawyers prepares the next. My concern was and is that the ability to effectively exercise the right to trial will someday (maybe soon) be limited because there will be no one left with experience doing the work. Not only will the next generation of lawyers lack the experience, but so will our judges. As I noted in 2015, the declining number of trials also means that the more than 450 superior and circuit court judges in our 92 counties have little opportunity themselves to oversee trials.
My position is obvious, but perhaps you view the occurrence of even a single trial as representing a failure of the system. If so, there are some questions to ponder. Do we think it better that the value of cases be ultimately determined largely by what other lawyers and mediators are able to convince their respective clients similar cases are worth? By paid focus groups? By computer algorithms? Beyond suspecting a continued decline in the next few years, I don’t know what to expect. But I will certainly be watching.•
• Louis Voelker is a partner in Eichhorn & Eichhorn, based primarily in Hammond, and serves on the board of directors of the DTCI. Opinions expressed are those of the author.