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Rick Shapiro
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Its Official: The Death of Injury Trial By Jury In America

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Personal injury jury trials are vanishing in our country. What are the causes of this slow extinction? Read below to learn my opinion on this issue.

Despite the dire proclamations of tort reform advocates who harp about runaway civil jury awards drastically increasing healthcare costs and basically destroying the world, statistics over the last ten years point to the exact opposite. Jury trials are actually becoming a rarity in state and federal courts all over the United States.

Virginia civil jury trials dropped 72 percent from a total of 2,042 in 1999 to only 570 in 2009, according to a Virginia Lawyers Weekly article published on February 15, 2010. Of all the seven cities in Hampton Roads, Portsmouth, Virginia (VA) is considered one of the best plaintiff-oriented jurisdictions in VA and it had 84 civil juries in 1999, but only eight civil juries in the entire calendar year of 2009. That is a staggering statistic.

A Portsmouth Circuit Court Judge, James A. Cales, Jr. said, referring to personal injury jury trials, “A lot of those were going to trial, and don’t seem to be now.”

Virginia Lawyers Weekly cites an increase in arbitration and mediation as alternative dispute resolution methods that may be reducing actual jury trials. However, there are plenty more causes.

Patricia Refo rang the alarm bell in an American Bar Association article entitled “The Vanishing Trial” in 2004, where she explained:

In federal courts, the decline in trials has been steep and dramatic. In 1962, there were 5,802 civil trials in the federal courts and 5,097 criminal trials, for a total of 10,899. In 1985, total federal trials had risen to 12,529. By 2002, however, trials had dropped to 4,569 civil trials and 3,574 criminal trials. Thus, our federal courts actually tried fewer cases in 2002 than they did in 1962, despite a fivefold increase in the number of civil filings and more than a doubling of the criminal filings over the same time frame. In 1962, 11.5 percent of federal civil cases were disposed of by trial. By 2002, that figure had plummeted to 1.8 percent.

The right to trial by jury in civil (injury) trials, as existed under the common law which America adopted from England, was made part of the seventh amendment to the U.S. constitution, which applies in all state and federal courts.

Another major change in civil trials over the last 50 years has been increasing use of court “summary judgment” filings that short circuit the right to jury trials. The summary judgment process allows judges to determine that material facts are so obvious, that they should not be heard by a jury—the judge essentially can terminate the case. This rule (often called federal rule of civil procedure 56 (Rule 56) has the statistical effect of eliminating more plaintiff’s injury cases, than terminating the case of the party being sued. Why? Because even if a plaintiff convinces a judge to grant a summary judgment on a major point of law in an injury case, that point still retains the need for a jury to determine the amount of the victim’s damages/losses.

In other words, a judge may determine that the defendant being sued was negligent or careless, but that leaves the jury to rule on the amount of damages suffered even though the party has been found legally responsible.

I am sure this is a minority view not shared by most attorneys, but I view summary judgment as a legal procedure that violates the 7th amendment and would properly require a constitutional amendment to be valid. How, then, can summary judgment be used in federal and state courts all over the nation? It takes legal challenges and a tsunami of concerted attack to roll back legal procedures that fly in the face of the U.S. constitution. This is but one example of many “unconstitutional” laws (they are completely “constitutional” until a court declares it “unconstitutional”). That is how our legal system evolves. This has been proven by “tort reforms” that capped the amount of recoveries in medical malpractice cases. These laws have subsequently been held unconstitutional in many states.

Several state high courts have now nullified these damage cap laws as an unconstitutional infringement of the seventh (7th) amendment. The same amendment that grants jury trials, as existed at common law.

If you can pass a law that removes the right to decide a jury verdict amount (malpractice caps) surely you dilute the same amendment by allowing a judge, not a jury, to decide on the critical fact of whether a person or party is negligent or careless. If a judge so rules, there is no trial by jury at all!

About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (NC-VA law offices ) edits the injury law blogs Northeast North Carolina Injuryboard, Virginia Beach Injuryboard, and Norfolk Injuryboard as a pro bono service to consumers.

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  1. Lilly says:
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    As a plaintiff thrown under the bus by a judge who ruled on SJ for defendant I couldn’t agree more

    Summary judgments are not an option for the plaintiff – When a defense team decides to go that route it essentially represents a trial by judge – If that judge rules unfairly – the appeals go on and on –

    Of course, most defense firms intentionally draaag out the SJ with continuances and other legal “traps” to wear down the injured party. In the meantime the plaintiff’s right to a jury has long been ignored- and may settle just to end the grueling uprooting of their life.

    Right to a jury? That is a laugh. Because of one judge, who looked the other way when my expert witness was “bought off” by the defense and same judge thought it was OK to have surgery that resulted in the absence of cancer…I didn’t get my day in court – and the offending dr. walked.
    Summary judgments are more like “let’s make a deal” and should be abolished as unconstitutional.