They include one-day jury trial with relaxed evidence rules, abbreviated lawyer opening and closing speeches, very few witnesses, no live expert or medical testimony, nonunanimous jury verdicts and same-day results. And, typically, SJTs can be either mandatory or optional and binding or nonbinding.
Mandatory but nonbinding SJTs are used as alternative dispute resolution tools in courts with congested dockets. Usually, early in the case, the court orders parties to engage in a SJT. The one-day schedule forces them to present their strongest, tightest case, and forces lawyers (thank God) to be brief. Background and corroborating witnesses, documents and arguments normally cluttering a case are jettisoned.
After the case is presented, real jurors, who are not told their "verdict" is nonbinding, render two of them--one on liability and one on damages, even if there is a defense verdict on liability. Parties are ordered to an immediate mediation, that day or the next, to attempt to settle the case. Obviously, if done properly, the SJT is highly effective in bringing about a resolution.
Then, there are also nonmandatory but binding SJTs, for litigants more interested in finality than settlement. This involves abbreviated jury selection, shortened lawyer openings and closings, abbreviated case presentations with two witnesses per side, one hour each side for direct and cross-examination, short plain-English jury instructions and nonunanimous verdicts where five jurors out of six agree. These verdicts are then final and nonappealable. No "judgment" is entered, but parties exchange releases.
SJTs' advantages are patent: Less time and expense for the parties and the courts. So, why haven't they caught on like wildfire?
Several reasons. First, SJTs are well-suited for single plaintiff-single defendant cases but can become unwieldy where there are, say, three or more defendants. Second, in nonbinding SJTs counsel are concerned about "showing their cards" where, if the case doesn't settle, the exercise becomes a dry run for trial. Third, litigants and counsel often believe their cases are too "important" or too "complex" to risk a streamlined one-day SJT.
While these are real concerns and can apply, they are often false concerns. The "show my cards" worry is largely bogus because, in this day and age of pretrial discovery, there are precious few cards that have not been shown before a "real" trial. The "too important"/"too complex" concern is also mostly false. Jurors are smarter and quicker than lawyers give them credit for, and most trial lawyers violate the "KISS" rule when presenting cases--keep it simple stupid. Many times, an average juror will understand a case as well after one day as after two weeks. And, most cases must be reduced to a simple theme or two and a core set of facts--which can easily be explained in a single day.
SJTs are particularly suited to insured risks. Often, policy limits serve as caps on jury verdicts and encourage "high-low" arrangements to contain risk on both sides. SJTs have a high success rate regarding settlement, relative to other ADR methods such as nonbinding mediation. They also tend to preserve an important feature of our civil justice system: resolving disputes by a jury of ordinary citizens. Consider this option. Everyone benefits here--the parties, the courts and the jurors.
PHILIP G. KIRCHER is co-chairman of the commercial litigation department at the law firm of Cozen O'Connor.
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September 15, 2007
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