What is a Summary Jury Trial?
We’ve written before about the benefits of using shadow juries and focus groups to better understand cases and better refine arguments for a jury. Both are useful tools, but both have real limitations. The two biggest are selection bias and agency bias. By definition, a focus group or shadow jury only contains people who are willing to take a day (or more) off work for some quick cash. And while organizers do their best to hide which party is paying for the focus group or shadow jury, you always have to worry that participants are telling you what they think you want to hear.
What you’d really like is the ability to force random people into a courtroom – whether they want to be there or not – and make them listen to something that looks like a trial in the shadow of an actual judge. You’d also want them to believe that what they told you about the case was a real verdict, so that they were as motivated as a real jury to take the matter seriously and put in the energy to come to a decision. That would give you real insight into a how a case would develop at trial and how a real jury would react.
But you can’t actually do that, can you? Abduct some strangers to focus group a case in a courthouse under highly misleading pretenses? Well, sometimes you can. Let’s talk about a summary jury trial.
The summary jury trial was developed in 1980 by Judge Thomas D. Lambros in the United States District Court for the Northern District of Ohio. [1] Judge Lambros believed that one of the major impediments to settling civil cases was that parties had wildly different expectations about how jurors would react at trial, particularly with respect to damages issues. [2] After trying two cases back-to-back which he thought ought to have settled, Judge Lambros invented a new process, essentially out of whole cloth, to test how a jury will react in the courtroom. As he put it:
It struck me that both of these cases, one an FELA and the other a diversity auto accident, should have settled prior to trial. The reason that they didn't was that counsel and their clients felt that they could obtain a better resolution from a jury than from their pretrial settlement negotiations. It occurred to me that if only the parties could gaze into a crystal ball and be able to predict, with a reasonable amount of certainty, what a jury would do in their respective cases, the parties and counsel would be more willing to reach a settlement rather than going through the expense and aggravation of a full jury trial. [3]
Under Judge Lambros’s original formulation, the summary jury trial worked as follows. The judge would empanel a six-person jury, drawn from the regular jury pool, and tell them that they’d been picked for a civil trial. [4] The judge would have some minimal voir dire in connection with this process. [5] Then the parties would have an hour each to argue their case to the jury. [6] There would be no witnesses, but testimony could be read to the jury or summarized by counsel and documents could be shown. [7] There were no rules of evidence and objections of any kind were highly discouraged. [8]
After the presentations, the “jury” would deliberate on a verdict. In contrast to a normal trial, the jury would be instructed to render a verdict as to the amount of damages even if it found no liability. [9] In marked contrast to an ordinary trial, jurors were instructed to come up with their own personal verdicts if the jury could not agree. [10] And once the verdicts were read, counsel would be given the opportunity to question the jurors about the motivations for their decision. The parties would then be ordered to mandatory mediation, either immediately following the summary jury trial, or a short time thereafter to allow the results to “sink in.” [11]
Judge Lambros was very pleased by the results – pleased enough to order parties appearing before him to participate in summary jury trials when he felt that it would aid settlement. Ultimately, he became a bit of an evangelist for the practice, convincing a number of other federal judges in courts throughout the United States to attempt them.
While much of the response was positive, there was also some initial skepticism. In particular, Judge Posner questioned whether the process meaningfully aided in settlement of cases. [12] And even among judges who generally approved of the process, there was disagreement about whether it was either legal or ethical for judges to do it. While the Federal Rules empowered federal courts to empanel juries to decide civil cases, it did not clearly grant them the authority to call jurors in for the sole purpose of focus grouping cases. There were also questions about whether it was right to tell jurors that they were deciding a case when – in reality – they were not doing so. While supporters of the practice pointed to Fed. R. Civ. P. 39(c), which allows for judges to summon advisory juries to enlighten the conscience of the court, the summary jury trial is a poor fit for the rule, either as a technical matter or if viewed in context with of the historical origins and purposes of the practice.
In 1990, Congress passed the Civil Justice Reform Act. While leaving any ethical issues untouched, the law authorized summary jury trials, along with other ADR mechanisms designed to expedite the federal dockets. As such, the legal status of the process is now on substantially firmer ground.
While summary jury trials enjoyed a brief bit of buzz in the 1990s following the law change, they largely disappeared from the discourse after the turn of the century. Today they occupy an unusual status. On one hand, they are technically permitted in more places than ever. In addition to the federal courts, Arizona, California, Nevada, New York, Oregon, and South Carolina allow them for at least some cases in some parts of each state. [13] But on the other hand, Judge Lambros has passed away and many of the initial judicial proponents of the summary jury trial have retired, slowing the adoption of the practice.
That said, summary jury trials do still appear and some jurisdictions have refined and improved upon the original formulation. One improvement is the use of witness testimony. Many jurisdictions that have adopted the summary jury trial have expanded the time given to the parties to enable at least one or two witnesses to be questioned live in the courtroom. For example, Maricopa County, Arizona, which offers summary jury trials for certain cases, gives the parties two hours to present their case and allows each side to bring one key witness to testify live. [14] California, which only recently implemented summary jury trials as part of its expedited trial offerings, allows for three hours per side and has no formal limits on the number of witnesses that can be examined during that period. [15]
Adding witnesses is an important refinement. If you’ve done a lot of focus groups, you’ll know that jurors often have very strong reactions to some people. It can be eye opening to see which witnesses are readily believed and which are instantly rejected.
A second modification is the use of summary jury trials as a final resolution mechanism rather than as a test bed to collect data for settlement or trial. When Judge Lambros invented summary jury trials, they were contemplated for high value cases where uncertainty about damages made settlement difficult. For example, the first summary jury trial was done in a case involving a severe head injury. [16] But in the years since, a number of jurisdictions have implemented summary jury trials as an efficient way to resolve low value cases for a fraction of the cost of a full-blown trial.
For example, Charleston County, South Carolina employs summary jury trials in low value tort cases. [17] The local rules permit parties to opt in to a summary jury trial by mutual agreement. [18] The trial is a bit longer than the Judge Lambros version – generally lasting a full day, but sometimes spilling into two, with essentially no rules of evidence.[19] The jury is real, chosen from the local pool and led to believe that they are serving as an ordinary jury in an ordinary case. [20] As an odd quirk, the judge is not real. [21] Instead, the parties pay a local attorney to don a robe and essentially masquerade as a judge in front of the jury, sitting at the front of the courtroom and giving instructions as though he or she were a judge. [22] The trials take place at the courthouse, with an armed deputy marshal present for security. [23] There is no court reporter, as there is no record and essentially no appeal. [24] Once the summary jury returns a verdict, the case is marked off the docket as “settled” for the amount returned. [25]
Is this a good development? As someone who is always delighted to try a case, it’s difficult to praise anything that reduces the number of full-blown trials. But I would never urge parties or counsel to set their money on fire. And a lengthy jury trial over $20,000 in damages is likely incinerating somebody’s wallet. To the extent that binding summary jury trials allow parties to “try” cases that would otherwise be settled on bad terms because of the costs of litigation, it definitely qualifies as an improvement.
But regardless of whether used as a hyper-realistic focus group or as an alternative to arbitration, summary jury trials are one of the few novel developments in trial practice to emerge out of the past several decades. That alone makes them a useful tool to have at the ready should the right case call for it.
[1] Molly M. McNamara, Summary Jury Trials: Is There Authority for Federal Judges to Impanel Summary Jurors?, 27 Val. U. L. Rev. 461, 468 (1993).
[2] Charles W. Hatfield, The Summary Jury Trial: Who Will Speak for the Jurors?, 1991 J. Disp. Resol. 151, 152 (1991).
[3] Judge Thomas D. Lambros, The Summary Jury Trial and Other Alternative Methods of Dispute Resolution, 103 F.R.D. 461, 463 (1984).
[4] Molly M. McNamara, Summary Jury Trials: Is There Authority for Federal Judges to Impanel Summary Jurors?, 27 Val. U. L. Rev. 461, 469 (1993).
[5] Id.
[6] Charles W. Hatfield, The Summary Jury Trial: Who Will Speak for the Jurors?, 1991 J. Disp. Resol. 151, 152 (1991).
[7] Molly M. McNamara, Summary Jury Trials: Is There Authority for Federal Judges to Impanel Summary Jurors?, 27 Val. U. L. Rev. 461, 469 (1993).
[8] Id.
[9] Judge Thomas D. Lambros, The Summary Jury Trial and Other Alternative Methods of Dispute Resolution, 103 F.R.D. 461, 471 (1984).
[10] Id.
[11] Charles W. Hatfield, The Summary Jury Trial: Who Will Speak for the Jurors?, 1991 J. Disp. Resol. 151, 152 (1991).
[12] Judge Richard A. Posner, The Summary Jury Trial and Other Methods of Alternative Dispute Resolution: Some Cautionary Observations, 53 University of Chicago Law Review 366, 382 (1986)
[13] The National Center for State Courts, Short, Summary & Expedited, The Evolution of Civil Jury Trials, pp. 6-7, available at: https://www.ncsc.org/__data/assets/pdf_file/0014/27230/shortsummaryexpedited-online-rev.pdf
[14] Id.
[15] Id.
[16] Judge Thomas D. Lambros, The Summary Jury Trial and Other Alternative Methods of Dispute Resolution, 103 F.R.D. 461, 463 (1984).
[17] Steven Croley, Summary Jury Trials in Charleston County, South Carolina, 41 Loy. L.A. L. Rev. 1585, 1595-97 (2008).
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
