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Weighing the cost of private trials

By: WISCONSIN LAW JOURNAL STAFF//February 22, 2012//

Weighing the cost of private trials

By: WISCONSIN LAW JOURNAL STAFF//February 22, 2012//

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By Richard Gabriel,
Dolan Media

Ethics opinion advises attorneys to consider client confidentiality obligations

The U.S. Constitution preserves the right of trial by jury for controversies where the value exceeds $20, but the practical reality is many lawyers will not even consider litigating a case unless the value is tens, if not hundreds, of thousands of dollars.

They just can’t afford it.

Whether they are on the plaintiffs’ or defense side, all litigants have been squeezed by the exponential complexity of litigation and the accompanying time and expense of discovery and trial.

State budget crises have compounded those challenges by drastically cutting court operating budgets.

According to Mary McQueen, director of the National Center for State Courts, Florida expects a court shortfall of $100 million this year, and in New York, budget cutbacks have led to hundreds of layoffs of court employees.

In all, 43 states, including Wisconsin, have experienced cuts to their operating budgets, severely hampering and slowing the administration of civil trials.

But while the strain on the courts causes some parties to settle cases rather than deal with prolonged trial dates, there will always be a place for parties to have their matters resolved by a representative cross-section of the community.

For example, there is now an expedited trial process in California and a short trial process in Nevada, although they are typically used for smaller matters since they are limited in time, number of jurors and appellate remedies.

There are also measures for curtailing burdensome discovery, such as those implemented in Oregon that eliminate expert discovery.

Some additional, but seldom used, remedies are available for those parties who do not want to wait for the courts.

There is a trial reference process in California, Nevada and Florida, in which parties can apply to be referred to a private judge. The judges can arbitrate the case to a final resolution, but they also can choose to empanel a private jury to hear the case.

Counsel agree on a retired judge or “neutral” to act as the reference judge in the case. They then either agree to a final resolution by the private jury’s verdict or to maintain their appellate rights through the public trial court.

The chosen private judge decides all pre-trial matters, including discovery disputes and pre-trial motions. The parties then agree to empanel a jury in the venue where the case would be tried. The private judge decides the length of the trial and scheduling of the witnesses.

All of that sounds pretty much like normal trial procedure. So why would parties agree to such a privatized system, especially when they would be paying a private judge, private jurors and other costs associated with a private trial?

First, depending on the court congestion in any individual venue, a private trial could allow the parties to resolve their matter in less time than the now estimated two to five years it takes to get to trial.

And though it is always desirable to have a witness testify live, it is also one of the primary scheduling difficulties in a trial. In a private jury trial, the parties can agree either to pre-record the direct and cross-examination of an expert or to have the witness testify via Skype or video conferencing.

The parties also can stream the private trial over the web for attorneys or clients who cannot be present.

By agreement, jurors can be recruited for specific professional expertise or personal experience if there are concerns that the case issues may be too complicated for an ordinary jury. For example, jurors with more medical experience can be sought for a medical negligence case, engineers for a products liability case or individuals with business experience for a contract case.

If all parties agree, certain evidentiary shortcuts can be taken, as well, including neutral tutorials to get jurors up to speed more quickly. That has already been used in federal courts in the Northern District of California, which routinely give a preliminary instruction on patents to jurors to help provide context for those claims.

The parties also can stipulate to evidence summaries, allowing witness narrative answers, or written summaries of testimony or evidence for the jury’s consideration.

Although it is more unusual, private jurors can fill out carefully designed questionnaires to determine what they see as the strong, weak and confusing issues in the case at various points prior to verdict, such as after opening statement, selected witnesses or closing arguments. Based on the interim feedback, parties could either adjust their presentations or resolve the case.

With the agreement of the private judge, the parties also can agree to other procedures to minimize the risks of a public jury trial, such as a high-low agreement between the parties.

The bottom line

When looking at the relative costs of a private versus a public jury trial, it may initially appear as if a private trial would be more expensive. But if the parties are paying attorneys and experts, the cost savings in conducting a private trial can be significant.

Think of a public trial these days. Many courts get only four hours of trial time in a day, and some conduct trials only three or four days a week. That means if each side has 20 hours of trial time, they are looking at two to three weeks of trial, with the attorneys usually billing for the entire day and weekends as they prepare for the following day.

However, as a private judge does not have to hear other matters, take a lunch break or end at a certain time, a private jury can clock eight hours of trial time per day. That means 40 hours of trial time can be completed in five to six days.

When you compare three weeks versus six days of trial, the cost savings can be significant. And since private jurors are better paid than public jurors, one could argue they are more likely to sustain their attention during a longer trial day.

There are additional cost savings in the elimination of the delayed motions, postponed hearings and restarts that occur in a public trial as the court juggles its own scant resources.

Private jury trials are certainly not for every case and should not supplant public jury trials as one of the cornerstones of American democracy. Private trials require greater preparation and cooperation between the litigants in order to contain costs, thereby creating greater efficiency.

However, with some recent polls finding that more than three quarters of those who participate in the system are unhappy with the current model of civil justice, it is important to look for innovations to relieve our overburdened courts.

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