Fewer civil cases go to juries due in large part to cost

Two years ago, Norfolk businessman Eric Stevens was broad-sided by a motorist who ran a red light. After surgery for a ruptured disc and other medical costs, he filed a lawsuit and entered the world of civil litigation.

Two days before his case was to go to trial, Stevens was offered $70,000. He settled.

Stevens isn't alone.

In cities across the state and beyond, the number of juries deciding civil cases has plummeted over the past 10 years.

In Virginia, civil jury trials, which typically number seven members, dropped 72 percent from 2,042 in 1999 to 570 last year, according to state Supreme Court statistics.

It's a nationwide trend that legal experts refer to as the vanishing jury, evident in both state and federal courts.

It's even found its way to the Yellow Pages, where some lawyers advertise quick results and cash settlements "without going to court."

Some see detrimental consequences to the trend.

"Our position here is the right to trial by jury is kind of the bedrock of not only Virginia but the U.S. Constitution," said Jack Harris, director of the Virginia Trial Lawyers Association. "If it just basically becomes an anachronism, I think we've lost something."

The reasons are varied, but Harris said he believes the cost of taking a case to trial is the biggest factor.

Stevens settled after figuring he could have ended up with a lot less once he got inside a courtroom. Just the cost of having two of his doctors testify would have been $15,000.

"I really did want a day in court," he said. "I thought this would be a great case to try. But on the flip side, the additional expense I was going to incur and the fact that any jury on any given day can swing one way or the other, it seemed like - why roll the dice when you don't have to?"

That assessment may be one of the few things that both defendants and plaintiffs agree on.

Resolving a civil case by trial is a big, expensive gamble, said Robert P. Hartwig, president of the Insurance Information Institute.

The tab grows with every hour spent on trial preparation, every filing fee and every player in the legal drama who has to be paid, including court reporters, doctors and other expert witnesses. Some cases can run into the millions of dollars.

The five South Hampton Roads cities have mirrored the decline in civil jury trials in Virginia.

For years, Portsmouth was considered a mecca for plaintiffs looking for a sympathetic jury. At one time the city was flooded with so many railroad workers' lawsuits that some state Supreme Court justices described the city's court system as a "happy hunting ground." Changes in law stemmed the tide of injury cases from other states being heard in Portsmouth courts.

Still, Virginia Beach attorney John Cooper will file a lawsuit to Portsmouth if he can. Just the threat of a Portsmouth jury can lead to a better settlement, he said. The working-class population in the city offers a better chance of getting jurors sympathetic to the underdog position of the injured person, he said.

Yet even Portsmouth has seen civil juries drop sharply, from 84 in 1999 to 8 in 2009. Portsmouth Judge James A. Cales Jr. remembers years ago when every judge there had at least one personal injury lawsuit trial a week.

"A lot of those were going to trial, and they don't seem to be now," he said.

Cales said he could not say why but has always assumed it was economics-driven.

Time also takes a toll on the desire to wait for trial. Some cases can take years.

Harris said the increased use of other forms of resolution, such as arbitration and mediation, also is a factor.

Sometimes, courts require the two sides to go into mediation, in which a third party makes an impartial assessment in an attempt to settle a dispute.

Further, many banks, credit card companies and other commercial entities have contracts with customers that call for mandatory binding arbitration, Harris said. In those cases, that means average consumers have forfeited the chance to argue their case to a jury of their peers in their community. Instead, the issue is decided by one or more arbitrators probably in a different state where the corporation is located, he said.

While civil jury trials have declined in Virginia, the state's civil case load has remained steady, averaging just more than 100,000 a year.

Settlement amounts in the long term have increased, even when indexed for inflation, said Kenneth S. Abraham, a law professor at the University of Virginia.

Abraham said it's not necessarily a good or bad thing if most lawsuits are settled before they get to a jury. He noted that the number of cases that actually went to trial was always small. The question it comes down to is, he said, whether someone felt pressured to settle or whether the settlement represented a kind of compromise.

"I think people have different views of that," he said. "And probably it's some of each."

But as the number of juries dwindles further, some point to another downside to the vacant jury box: a new generation of lawyers who don't get much experience pitching their case in a courtroom.

"The old guys used to try dozens and dozens a year," said Cooper, who has been doing personal injury work for more than 20 years.

Trial work, he said, is "becoming a lost art."

Janie Bryant, (757) 446-2453, janie.bryant@pilotonline.com