It’s hard to think of anything more dramatic, more compelling, or exciting than lawyers, judges, and witnesses squaring off in a courtroom. Think of every episode of Law & Order, movies like A Few Good Men or To Kill a Mockingbird, or read the cover of this month’s ABA Journal, Theater’s 12 Greatest Courtroom Dramas. Sadly, the courtroom drama is almost extinct in real life.
There’s surprisingly little data on the subject, but every litigator knows that fewer and fewer cases ever go to trial. Florida’s Bar Association recently published an in-depth study of the issue, finding that in 2010, there were a total of 401,463 Circuit Court civil dispositions, but only 879 of those actually went to jury trial, just 0.2 percent. At the Federal level, the jury trial is just as rare. As cited in a Colorado Law Week article, between the middle of the 1980s to 2004, there was a 63 percent drop in the number of federal civil trials, with only 5,500 reported across the U.S. in 2004. Only 1.2 percent of the 263,049 federal civil cases that terminated in the 12-month period ending September 30, 2009 went to trial.
Trials Do Matter
Nextpoint began life as a trial services company and litigation is in our blood. The death of the jury trial is a tragedy because without trials, justice is more difficult to obtain. It becomes easier for the powerful to squeeze the poor and the weak, forcing settlements and arbitration that suits the needs of only one side.
Unfortunately, the explosion of digital evidence and the complications it poses to the discovery phase of a trial is one of the most immediate reasons why parties settle rather than go ahead with their case. A few years ago, U.S. Supreme Court Justice Stephen Breyer lamented at an eDiscovery conference that, “If (eDiscovery) really costs millions, you’re going to drive out of the litigation system a lot of people who ought to be there. They’ll go arbitration . . . They will go somewhere where they will write their own discovery rules, and I think that is unfortunate.”
Writing for the eDiscovery Journal last month, Greg Buckles suggests that the reason so few matters actually go to trial is that gamesmanship and pressure tactics are making discovery costs unreasonably high. As the Florida report suggests, “The amount of material stored on computers makes discovery more time consuming and expensive. The Committee believes that judges need the power to exercise greater discretion over discovery. For example, the discovery rules could consider the resources of the parties and the issues at stake in determining the scope of discovery.”
Part of the Solution
This week, the Samsung v. Apple trial began. This an important case that will have far-reaching impact on the business climate in the country and the world. The technology issues around litigation that get a lot of attention- predictive coding, early case assessment, and other eDiscovery buzzwords do not matter very much in this case. As noted in WIRED, this is a complicated case and demands expert handling and presentation of evidence.
Technology is blamed for the demise of the jury trial, but it is also the solution. The solution is to make the entire process of litigation cost-effective and fair. Lawyers have to learn to take advantage of digital evidence to make a case effectively, rather than letting it overwhelm their legal team. The rest of this month, this blog will focus on trial and technology issues, especially the ways lawyers can take advantage of digital evidence to confidently take a case to trial.