The number of civil jury trials is hitting an all-time low in Wisconsin’s capital.
It’s a drop that has been happening for some time in the state, as well as across the country, experts say. It has brought intended consequences, such as more settlements, but also unintended consequences such as less legal precedent set.
In Dane County, about 1.1 percent of the more than 3,400 cases filed in 1997 made it to a jury trial, according to figures from the county’s Clerk of Courts office. Sixteen years later, that percentage hovers around 0.3 percent, though it is slightly higher when foreclosure cases – which increased dramatically around 2008 – are removed from the equation.
The trend started nearly 30 years ago now, said Marc Galanter, an emeritus professor at the University of Wisconsin Law School. Across the country, civil jury trials have been in decline for reasons, including judges who don’t want to conduct long trials to a shrinking pool of trial lawyers.
In Dane County, Circuit Judge John Albert said the decline also may be “due to the improving economy and the claims adjusters are [being] a bit more liberal with their checkbook.”
“Things have loosened up a little bit,” he said. “[Companies will] throw some more dollars at settling instead of paying for lawyers.”
Judges are a factor in the decline, as well, Galanter said, as they’ve begun to focus more on resolving disputes.
“The federal judicial establishment decided that trials were not a good thing,” he said. “It really was a new conception of what the judicial role [is] … their primary function was to resolve disputes, and once you do the job that way, they want to get settlements; want to get things to go away.”
Kent Carnell, a longtime attorney with Lawson & Cates SC in Madison, said he has noticed the shift. If settlements were reached in the past, he said, it would happen later in the case or during a trial. Now, he said, most cases never see a jury.
“My experience,” Carnell said, “is roughly 90 percent of cases that are in suit get settled in a mediation process and don’t get to trial.”
But the increase in settlements has some negative consequences, said Dane County Circuit Judge Richard Niess. With the decline in trials, larger firms and companies, he said, “don’t want to spend money developing the future cadre of trial lawyers” and offer less training in that area.
Niess also said he worries about a lack of precedent being set when cases are settled. There are emerging areas of law that deal with technology and copyright, he said, and those areas aren’t being developed.
“Without jury trials, you don’t have cases that are of record that the Court of Appeals can use to define and declare the law,” Niess said. “If everything gets diverted to [alternative dispute resolution], the development in law in Wisconsin and nationally is stymied.”
Both Niess and Albert said they enjoy having jury trials. Albert said a jury provides “easy closure on a case” and that “the standard is so high to overturn it; it’s essentially a no-brainer.”
Niess said he would like to see more civil cases go to trial going forward, because it’s important to continue to define case law and train attorneys.
“Unless we take an affirmative posture towards turning this around,” he said, “you’re going to see fewer and fewer jury trials in the future.”