NYU’s Civil Jury Project (State Bar of Texas Annual Meeting 2024)

Episode Notes

Transcript

Rocky Dhir:

Hello and welcome to another episode of the State Bar of Texas podcast. We are recording live from our state bar annual meeting in Dallas, Texas. This is your host, Rocky Dhir. Joining me now, I have Judge Mark Drummond. Now, some of you who are Texas legal aficionados might be thinking I’ve never appeared before, judge Drummond. Well, that’s because he’s located in New York City, but moreover, he wasn’t even a judge in New York City. He’s from Illinois, but he’s coming to us with some very interesting insights that he shared with the litigation section of the Texas Young Lawyers Association. He gave a talk called the Vanishing Act, the Civil Jury Project’s Quest to revive jury trials in America’s legal landscape. So Judge, first of all, welcome. Thank you for joining us.

Judge Mark A. Drummond :

Well, thank you for having me.

Rocky Dhir:

So let’s start with this. I think a lot of us as lawyers, we keep hearing mention of jury trials kind of going away. They’re not as prominent as they used to be. They’re not as common as they used to be. Is that true? What do the numbers tell us from the last 30 years or so?

Judge Mark A. Drummond :

Oh, the numbers tell us that jury trials are declining very rapidly in the United States. You can go on our website and take a look at a chart that we have. I’m looking at it right now of the number of civil and bench trials per authorized federal judgeship.

Rocky Dhir:

And what’s that website, judge?

Judge Mark A. Drummond :

It is. If you type into any browser, civil jury project, NYU, it’s actually www dot civil jury project, all one word do law.nyu.edu. You will find a chart on there where back in, and I’m looking at it, it’s highly detailed. There were over 12 per year for federal judges back in the eighties, which meant about one jury trial a month, and now it is below three jury trials per year.

Rocky Dhir:

Is that all over the country or is that just certain states, or is that just the federal judiciary? What do we know about the trends?

Judge Mark A. Drummond :

It’s the federal judiciary, but we see a decline in civil jury trials throughout the United States.

Rocky Dhir:

I know we all have our armchair theories on this, but do we know why federal trials or jury trials in general, do we know why they’ve declined in number?

Judge Mark A. Drummond :

There are many reasons. One is the mandatory arbitration clauses. In many contracts, I imagine if you would look at the contract for your cell phone, you’d have mandatory arbitration. If you take Amtrak, you have mandatory arbitration. And so that has effectively kept people out of the Courtroom. The expense of discovery has gone up On our website. Again, we have a listing of what we think are all the factors in terms of why jury trials are declining, and arbitration is one of the main reasons. The expense of discovery is one of the main reasons there are movements afoot to cap damages or to eliminate certain causes of action. There are on our website, 1, 2, 3, 4, 5, 6, 7, 8, 9 reasons for the decline that are very difficult to change. We also have, I believe there’s eight reasons for decline that are comparatively easy to change. One is the expense of discovery, delay in getting the trial, and quite frankly, our founder, Steve Sussman, who is from the state of Texas.

Sure, absolutely. The late Steve Sussman was a visionary if you would put into any search engine top trial attorneys of the last 50 years, his name would always be there, and he is very interested in this decline. He felt there was a need to preserve the jury trial system principally because it gives us the anchor, it tells attorneys and judges what cases are worth, what 12 people think the case is worth, and we lose that anchor. We’ve lost something. In addition, people are very hesitant to come for jury duty, but quite frankly, once they do it, they absolutely almost to a one love it. Say it was a great experience and there are other effects of jury duty. There was a study done that shows that people actually vote more after doing jury duty,

Rocky Dhir:

Get a sense of their civic duties and how it plays into the larger democratic landscape.

Judge Mark A. Drummond :

Right, exactly.

Rocky Dhir:

If I could, I’m going to play devil’s advocate for a second, is I think one of the issues that I often hear when talking with lawyers and clients about juries is they don’t often, like you said, there’s issues with the expense of discovery. There’s the time involved, there’s the attorney’s fees, but there’s also the uncertainty of what 12 people are going to do with a particular cause of action. And so they say, well, instead of putting my fate in the hands of 12 people, I’d rather have an arbitrator or I’d rather settle a case out of court. What would be your response to people who have a hesitation to putting their fate in the hands of 12 people?

Judge Mark A. Drummond :

Well, I tried cases for 20 years, and then I went on the bench for 20 years and then I’m back in practice now. And I can say out of all the jury trials I had, there was only one jury trial, and it was a criminal case where they gave the principle in the armed robbery too good a deal, and it was jury nullification. That was the only case I disagreed with. I believe that for the most part, 12 heads are better than one head, whether it be a judge or an arbitrator. Every time I talk to a group, I talk about the book, the Wisdom of Crowds.

Rocky Dhir:

I’m not familiar with this book. Yeah, tell me about this. This sounds interesting.

Judge Mark A. Drummond :

Yeah. The collective wisdom of many people is usually much more accurate than the decision of one person. And let me give you a couple of examples. On the simple side are cases where people go to the county fair and they’re asked to judge the weight of the cow and nobody ever gets it right. But when you average what people have guessed, it’s within a couple of pounds. The most dramatic is when the USS scorpion, the submarine was lost and the Navy needed to find this nuclear sub and they couldn’t find it. All they had was it’s last heading. They knew how fast a sub could go. They knew approximately where the last communication was. And the admiral in charge of finding the sub decided, you know what? We’re going to have separate groups work on this problem. So they had salvage engineers on one group. They had Navy people on another group, and they had a variety of groups, mathematicians all working on this. No one could accurately predict where the sub was, but when they averaged them, they were within 200 yards of the sub and they found it.

Rocky Dhir:

Oh, interesting. But then again, my job here, I’m to be devil’s advocate, but there was a time when the crowd said that the sun revolved around the earth, and when one person Galileo said otherwise, they killed him. So what do you say to that? I mean, what if my case is the Galileo case and I’m taken to the Gallos because the crowd wasn’t correct this time?

Judge Mark A. Drummond :

I’m not saying the system is perfect. There are course outliers out there, but every time I talk to a civic group, whether it be a school or the Kiwanis Club or the Rotary Club, they always bring up the McDonald’s coffee case, and I tell them, you need to watch the documentary Hot Coffee.

Rocky Dhir:

They don’t know the full story.

Judge Mark A. Drummond :

Yeah, yeah. They do not know the full story. And once you watch that documentary, you can see why the jurors arrived at that verdict. Of course, you never get, as Paul Harvey said, the rest of the story, and that is that the amount that was decided was cut by the judge. The story that I’ve heard was that it was actually great jury selection. Evidently, the plaintiffs asked the jurors, if we prove our case to you, if we prove that they serve it too hot, if we prove that it’s too hot for the container, if we prove that they knew people were burned and simply ignored this, if we prove our case, would you be willing to find the company? Two days of coffee sales. Got it. And everybody said, well, if you prove your case, yeah, two days sounds reasonable, and two days of coffee sales evidently amounted to that huge verdict.

Rocky Dhir:

Let’s assume for the moment that the jury trials are a good thing. We can trust juries to come to the right decision most of the time with the absence of those outliers that we talked about, the anti Galileo juries, if you will. Let’s assume for a moment that the jury trial is a good thing. With all these factors we’ve talked about discovery, uncertainty, length of trial expense, how do we make jury trials more attractive to litigants? Again, are there any thoughts that the group has? Well,

Judge Mark A. Drummond :

I will go back to Steve Sussman. If people will put in trial by agreement Sussman, they will find a group of pretrial agreements that he devised and came up with that they can enter into with opposing counsel before there’s anything at stake. And it actually helps both sides in terms of cutting costs to the litigant. Simple things such as parties share the same reporter or videographer that lead counsel instead of emails by associates back and forth who are B by the hour, that lead counsel talk on the phone instead of the emails back and forth rolling discovery and a numbering system sequentially. So exhibit four is always exhibit four regardless, and if attorneys will take a look at trial by agreement, it can really cut the cost of trials. Now, one of the jury innovations that we also have been touting is time trials and attorneys rail against this. They don’t want to be put under the clock, but once they do it, they like it. The number one complaint by jurors against attorneys said that we’re too repetitious.

Rocky Dhir:

Can you repeat that for me? Can you say that again? Judge

Judge Mark A. Drummond :

And the attorneys say it makes them focus more with the time trials and the jurors appreciate it. One of the other innovations is no sidebars, that instead of the attorneys running up to the bench and taking time away from the jurors, we handle those during the breaks. Other innovations are juror questions, which involves them in the trial more. They can submit questions that the judge will vet with the attorneys and then ask the jurors.

Rocky Dhir:

When you were sitting on the bench, I have to imagine there were times when you would meet with the parties and ask the question, have you guys talked about settlement? Can you guys possibly settle out of court? Is the civil jury project suggesting that we need to tamp down on settlements or is there, because most cases settle out of court, so I’m assuming there’s still a proclivity towards settlement and we don’t want to deter people from settling their disputes. It sounds like you’re talking about something else then where the jury trial comes in.

Judge Mark A. Drummond :

No, we don’t want to discourage settlement. I mean, settlement is good, but unless you have the anchor of what a case is worth, what a jury will do with the case, you really have no anchor in terms of deciding what the settlement is. Now, one of the factors which has increased the decline of jury trials is the fact that we do have a lot of jury consultants that will perform mock juries. So they actually try the case in front of a mock jury, see what a mock jury will do, and they end up settling the case.

Rocky Dhir:

In terms of the civil jury project, I guess, can you tell us a little bit about what it is and how do lawyers get involved in this, assuming they also want to now get people more involved in the civil jury aspect?

Judge Mark A. Drummond :

Sure. They can go on our website and look at all the, we post everything. Every innovation that we have is on our website. You can take a look at the trial by agreement that Steve Sussman came up with on our website. We issue a newsletter of new things that are trending in the area of jury trials. One of the benefits, and I don’t want to say benefits, but the pandemic was terrible for everyone. But one of the things that we were working on during the pandemic is remote jury selection. So instead of dragging a hundred people down to the courthouse who have to find parking, some people don’t have transportation. This helps to increase the diversity of the jury pool if you do remote jury selection. So instead of having to go to a physical courthouse, you’re given a summons. You log on either in your home or at work for an hour or two. You’re asked questions over Zoom and only if you’re selected, you’d go to the courthouse. Now, some attorneys say, I hate this. I want to see the person in full. I want to see their body language. Other attorneys say, no, actually, I like it better. I get a better sense of the person in full screen in an environment in which they’re comfortable.

So instead of having to answer questions about themselves or attitudes, they may have about a certain topic in front of a hundred other people in a sterile, cold Courtroom. They’re sitting at home and they’re much freer to talk, frankly about their feelings or their background.

Rocky Dhir:

Judge, here’s maybe a final question for you, and this may be slightly off topic, but on the other hand, it might be very germane, and I’ll let you kind of be, pardon the expression. I’ll let you be the judge of that. But it goes back to the question of AI and artificial intelligence. Do you think AI is going to have an impact either way on the prominence of jury trials in the future?

Judge Mark A. Drummond :

That’s an excellent question. I don’t know. Are you asking me, do you think we will have AI judges?

Rocky Dhir:

Well, and I guess that’s part of it, AI judges or at some point, would the jury be eliminated because the AI tells us what the answer should be?

Judge Mark A. Drummond :

I would hate to see that. I think as good as AI is in terms of finding information and creating information, you cannot take the human element out. And I don’t know how you would inject the human element into decision making. Every case is different, every defendant is different, every plaintiff is different, and I simply don’t know how AI could adapt and handle that.

Rocky Dhir:

So I guess it goes back to the whole issue of trial by jury, mean trial by humans. This is all about the human experience.

Judge Mark A. Drummond :

A jury of your peers.

Rocky Dhir:

Indeed. Well, judge, that is unfortunately all the time we have for this particular installment of the State Bar of Texas podcast. I do want to thank you though, judge Drummond for joining us.

Judge Mark A. Drummond :

Well, thank you. And go on our website if you’re interested in preserving jury trials.

Rocky Dhir:

Absolutely. And of course, to all of you listening, thank you for tuning in. If you like what you heard, please rate and review us in Apple Podcast, Google Podcast, Spotify, Amazon music, or your favorite podcasting app. Until next time, I’m Rocky Dhir. Thank you for listening.