Is the right to a jury trial vanishing in California?

When asked the question whether there are more or less personal injury cases tried now as compared to ten years ago, most people will answer that there are more. Insurance companies, large corporations, and some politicians have intentionally misled the public that there is a litigation explosion in our country. Nothing could be further from the truth.

A recent New York Times article reported that numerous law journals have reported a decline in both civil and criminal jury trials nationwide. The Bureau of Justice Statistics has been tracking the number of civil trials in state courts since 1992. Their surveys show that the number of civil trials has declined by over 50% between 1992 and 2005. Those numbers have continued to decline.

What are some of the reasons for this decline in jury trials? Many cases are referred to arbitration. If you look at most of the agreements you sign with credit card companies these days, the contracts frequently contain arbitration clauses. This means that if you have a dispute with the credit card company, you cannot sue them in state or federal court. You must have your claim heard before a private arbitrator. The courts favor these arbitration clauses and regularly enforce them, forcing clients to give up their right to a jury trial.

As an Alameda personal injury lawyer, I see more and more arbitration clauses being inserted into nursing home admission agreements. If the nursing home resident has the mental capacity to sign the agreement, he or she loses his right to a jury trial if the resident is injured as a result of negligence or elder abuse. The same is true if the resident’s personal representative signs the arbitration agreement. I also frequently see these type clauses inserted into health club contracts, and employment contracts.

Another reason that there are fewer and fewer jury trials, is the proliferation of the mediation process over the past 20 years. Mediation is a confidential hearing whereby the parties hire a neutral mediator to assist them in resolving the claim. The mediation is a non-binding process that frequently results in the resolution of the case. The hearing is done in private and everything said at the hearing is privileged and cannot later be used at trial if the matter is not settled at the mediation. More and more companies, such as in a recent personal injury case I had against Uber, are demanding that not only the mediation be confidential, but the results of the mediation must be kept secret.

What does this all mean for you, the consumer of legal services? With regard to arbitration clauses, the costs and fees associated with an arbitration can frequently exceed the costs associated with a court trial. One of the main reasons for this, is that you must pay the arbitrator whose fees often exceed $500.00 per hour. Another problem with going through the arbitration process is that there is a built in bias in favor of the insurance company or large corporate defendant. The arbitrators tend to be hired repeatedly over and over by the same large companies, whereas the individual plaintiff does not frequently use arbitrators. Thus, the arbitrators are earning large fees consistently from the same insurance companies and corporations. Thus, even when the findings are in favor of the plaintiff, the ultimate judgment or award tends to be more conservative than what a jury of one’s peers might award.

With regard to mediation, this process can often reduce costs as matters are resolved without the necessity of a jury trial. But the downside for consumers is that these closed door hearings are confidential. The public does not get to learn the amount of settlements, key factors or evidence that were discovered in the cases. Thus, corporations and insurance companies are able to bury critical information that might be useful to other plaintiffs who are injured as a result of similar negligent conduct, defective products, or other corporate malfeasance. This is information that would be available to the press and therefore the public, if the case was heard before a jury.

The jury trial is an important right granted to us by the Seventh Amendment of the Constitution. The jury system is a powerful safeguard for the people against large power interests that must be protected. As fewer and fewer cases go before juries, this can lead to injustices to consumers. While arbitrations and mediations have a place in the legal system, we should not be overly dependent on them, at the expense of diminishing the importance of the civil jury system and protecting individuals’ rights.

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