THE SUMMARY JURY TRIAL
Viewing litigation cases through the eyes of a jury

By Wendi A. Rogers, CLA

The Summary Jury Trial has become one of the most effective ADR processes utilized by the Civil Justice System. The Summary Jury Trial (SJT) is a relatively new dispute resolution technique designed specifically for complex civil litigation cases. The SJT adds a very important element that is missing from other ADR processes used for resolving court cases. That is “the Jury.”  This process is not clear of criticisms, however, as a select few have tried to downplay its effectiveness. This article will address the history of the Summary Jury Trial, the criteria for setting a case for Summary Jury Trial and the procedures involved with the process. This article will also discuss the key criticisms of the Summary Jury Trial process.

Thomas D. Lambros, Chief Judge of the United District Court for the Northern District of Ohio, developed the Summary Jury Trial in 1980.1  He envisioned a mechanism that would relieve his congested trial docket.2 His model plan for revolutionizing the ADR of civil trials was endorsed in 1984 by the United States Judicial Conference.3  Judge Lambros helped organize a study in the Northern District of Ohio to formulate the effectiveness of the SJT on the court’s docket. The study, conducted from 1990 to 1993, compared the cases referred to SJT to similar cases pending before the courts for the same period of time. The study showed that “[o]ver 82 percent of the summary jury trial cases were resolved more quickly than the average of comparable cases . . .reduc[ing] the time a case remained pending by 337 days.” Since the SJT presentations are cheaper and shorter than an actual trial the end result is a cost savings to the litigants and the taxpayers.4

The SJT takes place in a courtroom before either a judge or magistrate. A six to twelve member jury is selected from the regular jury list. The jury is impaneled through the normal voir dire selection process. The attorneys for each side are allotted a specific amount of time to present a summary of their party’s case to the jury. These presentations usually take from a half-day to two days depending upon the complexity of the case. After the jury is instructed and charged by the judge, they retire to a jury room for deliberations. While the jury is deliberating, the judge will allow the parties to begin settlement discussions. When the jury has reached a verdict, the verdict is read in open court before the parties. The parties are then given the opportunity to question the jurors about their deliberations and their thought processes.5

There are several factors that a judge considers when deciding if a case is right for SJT. First the judge looks at the parties and their lawyers. What is their perspective regarding the critical issues?  If they think that their case is strong in one aspect or another, and refuse to see or perceive the potential downsides to their case, then other dispute resolutions alternatives will probably fail. This is especially true when the lawyers perceive their case as strong and expect a favorable jury verdict. Another consideration is when the parties perceive their opponent’s case unrealistically and refuse to see the other side’s potential success. Sometimes the parties are unwilling to settle because they are looking for “their day in court.”  The SJT gives them a very close substitute and many times the parties are satisfied that their voice was heard. The judge evaluates these factors, coupled with the complexity of the case and the estimated length of an actual jury trial, before assigning it to SJT.6

The SJT process is meant to be flexible and should be modified on a case-by-case basis.7  Normally, the process begins with a pre-trial conference. The judge must verify that the discovery is substantially complete and that the climate is appropriate for SJT. The judge needs to address any pretrial motions such as evidentiary issues and motions in limine prior to the SJT. Some judges also require that the case be mediated at least once unsuccessfully. The case should have a definite Jury Trial date already assigned. It is customary to set the case on a docket that is 15 to 30 days after the SJT.8  This places some pressure on the parties to take the settlement process seriously.

At the pretrial conference, the judge will discuss the procedures for the SJT. He will set time limits for each party’s presentation. He will lay down ground rules about evidence presentation. The judge will observe the process from a fairness standpoint and make sure that the attorneys’ statements are accurate to the weight of the evidence.9  This is a difficult task since the rules of procedure and evidence normally do not apply in the SJT. Evidentiary objections and arguments merely bog down the process and cause unwanted delay. This gives the attorneys freedom to interject their arguments into the evidence as it is presented. The evidence should accurately reflect that which is admissible at the time of trial. The actual pieces of evidence are documents that are read to the jury or presented for viewing to the jury, witness statements in the form of video or merely the attorney’s own recollection of their testimony, and any other tangible items that are admissible in a would be trial.10

The jury’s level of participation in the process varies from case to case and court to court. The jury is one of the most important elements of this process as it simulates what a jury would do in a traditional setting. The jury’s involvement is also one of the biggest areas of controversy among judiciary. Judge Lambros believes that the Jury must perceive the value of their participation and commit to hearing the case as part of their civic duty. He believes that telling them in advance that the process is non-binding would negatively affect their dedication to the case although he opposes misleading the jury to believe the SJT is equivalent to a normal jury trial.11  Others feel that not being completely forthright about the non-binding status of their decision could impair the effectiveness of the Jury System.12  Critics also question the authority of judges to use the civilian jury for this process stating that the “Jury Selection and Service Act”13 does not allow for the use of jurors as mediators or mediation tools.14

The Jurors are empanelled just like any other jury trial. They will decide the case based upon their own views of the attorneys and the evidence, which is customary in a traditional jury trial. One difference is that jurors are often permitted to take notes during the presentation for use during their deliberations. At the conclusion of the presentations, the presiding judge will instruct the jury and present them with a charge. The Court may give them an abbreviated charge or the complete charge that will be submitted during the full jury trial.15  After the jury reaches a verdict and the verdict is read to the parties, the parties are allowed to debrief the jury. This is an aberration from the normal process. The attorneys and parties are permitted to ask them questions about how they reached their decision including which evidence they found most persuasive. This is extremely helpful to the attorneys as it tells them the strengths and weaknesses of their case for settlement purposes. It also provides them tactical information they can utilize when preparing for the actual trial. After the debriefing, the judge urges the parties to allocate sufficient time to mediate the case. Many cases have a mediator on standby. When the SJT concludes, the parties move directly into mediation.

The SJT process receives some criticism from judiciary and attorneys. The first criticisms came from Judge Richard Posner in the Seventh Circuit court.16  Posner questions the utility of the process and believes that the success of the program should be proved through verifiable statistics.17  It is difficult to statistically prove the overall success because there are many variables that come into play in each case including the proposed length of the trial, the number of parties involved, the complexity of the legal issues, and the demographics of the proposed jury. It is very difficult to find a control group that matches the test group. As mentioned earlier, Judge Lambros did study the length of time a case was on the court’s dockets by comparing similar cases. He concludes that the SJT process has significantly reduced the number of months cases are remaining on the court’s docket.18

Another source of criticism stems from the ethical considerations involved in setting a case for SJT. Does a judge have the authority to mandate that a case go through SJT before an actual jury trial?  Judge Lambros argues that even though the SJT is not binding on the parties, it is still a jury trial under the Federal Rules and it is specifically authorized by federal law under 28 U.S.C. _473(a)(6)(B). Furthermore, judges are required to efficiently manage their dockets and are given “extra-judicial procedures” to do so under Rule 16 of the Federal Rules of Civil Procedure. Rules 1, 16 and 39(c) permit the court to use juries for advisory verdicts.19  Judge Posner counters that advisory verdicts are to help judges render decisions and that a summary jury is not advising the judge, it is providing information to the parties to promote settlement.20  Judge Posner has shown moderate support for Bench Summary Trials as an alternative to using juries funded by taxpayer funds.

Another issue that must be considered is how the evidence is presented during a SJT. The traditional juries’ role is to evaluate the facts of the case and the evidence including evidence provided by witness testimony. In most summary jury trials the witnesses do not testify live, therefore the jury will not have first have impressions of the witness’s credibility. The summary jury must then rely on the attorney’s conjecture.21

The civil litigation process is a lengthy one. Optimum resolution of these cases is through settlement. Many of the dispute resolution programs available to litigants cannot adequately simulate the effects of a jury trial because it is difficult to predict how a jury will interpret the facts of the case within the structure of the relevant legal issues. Judge Lambros has provided an excellent tool to forecast what a jury’s verdict might be. Although there is some criticism of the process, one cannot wholly discard the success seen in many of the federal and state court dockets across the country. Judge Lambros’ goal was to reduce the congestion of his court’s docket and his evaluation of the process indicates that if used appropriately it can be successful.

Wendi A. Rogers, CLA, is Board Certified in Personal Injury Trial Law. She has been a litigation paralegal for 14 years and is currently with the law firm of Hyatt, Crabtree & Moore, P.C. in Dallas, Texas. She is a certified mediator and has a B.A.A.S., Cum Laude from the University of North Texas majoring in Legal Information Management. She served asthe President of the LAD from 1997 to 1998.

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1 Posner, Richard. The Summary Jury Trial and Other Methods of Alternative Dispute Resolution: Some Cautionary Observations. University of Chicago Law Review Vol. 53 (1986): 366, 368.

2 Lambros, Thomas D. The Summary Jury Trial: An Effective Aid to Settlement, Judicature  77 Vol. 1 (July-August, 1993): 6.

3 Ibid, p.7.

4 Ibid, p. 8.

5 Lambros, Thomas D. The Summary Jury Trial—An Alternative Method of Resolving Disputes. Judicature 69 Vol. 5 (February-March, 1986): 286.

6 Ibid.

7 Ibid., p. 290.

8 Ibid..

9 Ibid., p. 287..

10 Ibid., p. 289.

11 Ibid.

12 Posner, p. 380

13 28 USC 1861-1877 (1982).

14 Posner, p. 380

15 Lambros, The Summary Jury Trial—An Alternative Method of Resolving Disputes, p. 289.

16 Metzloff, Thomas B. Improving the Summary Jury Trial. Judicature 77 Vol. 1 (July-August, 1993): 9, 10

17 Posner, p. 367.

18 Lambros, The Summary Jury Trial: An Effective Aid to Settlement, p. 8.

19 Ibid. p. 7.

20 Posner, p. 380.