Reviving the Jury Trial
4 tools to resuscitate the tradition — and breathe life into your practice
While jury trials are increasingly rare, attorneys have also never been better equipped to win them. With the right case management tools, you can be prepared, confident, and credible as you face the jury.
But how do you get in front of a jury, to begin with?
Are Jury Trials Outdated?
Only a fraction of criminal cases ever go through a jury trial. Over 90% end in plea deals instead, a dramatic change from even ten years ago. Some judges sit on the bench for years without ever presiding over a jury trial.
The civil side is similar: 95% of lawsuits are resolved through a pre-trial settlement. And this doesn’t take into consideration the number of disputes that are diverted to arbitration, outside of court.
This has also led to a fall in the number of citizens who have the chance (or burden) of serving on a jury. This record low may be one reason younger people are less likely to think jury duty is important. The act is so rare it’s disappearing from our collective sense of morality.
The Sixth Amendment still exists. The courts themselves have reiterated the importance of the institution, calling it “a fundamental right, essential for preventing miscarriages of justice.”
It’s like agreeing that voting is important, but only holding an election once a decade or so.
The founding fathers held the jury trial dear. John Adams coupled representational government and the jury trial together as “the heart and lungs of liberty.” But those fellows also fancied powdered wigs and wooden dentistry. Does the jury hold a place in the future of law? Or are these lungs of liberty gasping their last?
Some forward-thinking attorneys aim to bring the jury trial back from the brink. They’re not calling on their legal colleagues to sacrifice themselves in the name of democracy. They’re instead showing how jury trials can distinguish you from your peers and build a more successful practice.
The Benefits of Taking the Leap
It’s cheaper, speedier, and much less risky to settle a case out of court. So why would you want to go through the hassle of pushing onward to trial?
Sometimes, the sheer bravado of moving toward a trial can make a trial unnecessary. As the other side sees you’re serious, they may reconsider their earlier offers.
Also, the absence of jury trials means that settlement offers can drift further from what an actual jury would award. In these situations, the jury trial is a reality check on the entire industry. For plaintiff-side attorney Steven Gursten, this meant some of his clients receiving million-dollar jury awards after rejecting $10,000 settlements.
Beyond the specifics of one case, the art of jury trials can help you build a practice. It’s one fast way to distinguish yourself from your peers. Gusten is himself a good example of this. After he started aggressively pursuing trial experience, he reported a wave of referrals. Following these, he quickly gained a state-wide reputation for his work.
And finally, taking cases to trial builds your long-term bargaining power. In future settlement negotiations, they’ll know not to push you too far.
Of course, any trial comes with risks, and the decision of taking those risks rests with the client. But attorneys are also responsible to explain to their clients the possible rewards of the trial as well. When a client wants their day in court, try to seize the moment. While you support your client in their wishes, you’re gaining your own invaluable experience.
I say ‘invaluable’ because this experience is vanishingly rare. One huge worry with the decline of trials is that young attorneys have had no chance to learn the ropes. Some worry they’ll look like teenagers trying to use a rotary phone. The latest generation of attorneys is coming to court with huge gaps in their experience.
Nothing can replace that experience. But good trial lawyers know you have to play to your strengths. Modern attorneys have something their predecessors couldn’t have ever dreamed up: unprecedented help from new technologies.
Here are 4 tools to help you in front of a jury.
4 Tools To Stay Sharp in a Jury Trial
We could bemoan that we weren’t raised in the good old litigating days of Daniel Webster — or even Perry Mason. Or we could recognize the benefits we do have by being an attorney at this time.
Technology can’t turn you into Atticus Finch. But it can build your confidence and credibility in front of a jury. Whether you’re new to the scene or well-established, use these three tools to strengthen your case, build your practice — and, while you’re at it, resurrect a dying art.
1. The Cloud:
Litigators of the past hit the books and carried around mountains of files. You have the power to find all the information you need on any device.
Cloud-based case management software keeps all of your case information organized and accessible. You are instantly updated on any new developments. And your team can seamlessly collaborate on documents or motions.
It’s credibility that wins jury trials. When you have full access to the details of the case, when you know them better than anyone else in the courtroom, you win credibility.
And even if you’re caught off-guard, the cloud makes it more likely you can find what you need before anyone notices the stumble.
2. Advanced Reporting:
Trial lawyers once were forced to rely on anecdotes and gut instinct. Modern firms and legal groups now can have unprecedented access to their own data.
Good trial lawyers understand more than the details of their case. They know the opposing parties, the judge, and the expert witnesses. They make decisions based on the other parties’ past behavior. Does this attorney tend to bluff? Does this jurisdiction favor clients like yours? What have been the results of similar strategies in the past?
All of this information can be stored in your case management software. Advanced reporting and visual charts can then help you guide your decisions.
This is another crucial way that more experienced partners can share their wealth of knowledge with junior partners, rather than taking it with them when they leave.
3. Smart Calendars:
Instead of a sheet of paper on the wall or a leather-bound book, your calendar is now most likely in the cloud. This isn’t just a change of venue. Cloud-based calendars are a different species. They can do things no Franklin Planner could imagine.
You can create automatic deadline chains, customized to your practice area and jurisdiction. These are collaborative, shared with the relevant team member to ensure you never leave each other hanging. And they can be tied to your task list, with regular reminders to keep the whole team on track.
One of the worst mistakes a trial lawyer can do is miss a deadline. New technology can significantly decrease the likelihood of human error and keep you ahead of the game.
4. Automated Task flows:
The modern task flow is also a far cry from the old paper checklist. Increasingly, attorneys are looking to automation to build efficiency into their practice. An automated task flow makes each stage of trial preparation as simple as possible. Tasks are automatically assigned to the relevant team member at the right time.
The administrative work can move forward with ease. This gives you more time to focus on the work that wins cases: in-depth research, creative thinking, and powerful written and oral arguments.
Even as the experience grows rarer, the ideal of a jury trial still rests deep in many attorneys. Maybe it’s the reason we became attorneys in the first place. We watched Matlock and My Cousin Vinny. We saw those charismatic closing arguments. We fantasized that one day that would be us up there.
Of course, the fantasy faded. We learned there are no surprise expert witnesses or last-minute clues that make the real murderer spontaneously confess in court. But the foundation of a jury trial is no fantasy. It’s a reality still available to brave attorneys.
Trial attorneys now face a myriad of forces against them. But one of these, at least, is in our control. It’s our own fear. With the right tools and preparation, we can calm our fears, gain confidence, and become the kind of attorney we always wanted to be.