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Wednesday, November 16, 2016
Getting Justice In the Age of the Disappearing Jury Trial
A lot of things have changed over the last 40 years. The internet and the cell phone have revolutionized the way we communicate, new laws like the Clean Air Act have protected us from harm, and the Cold War was replaced by terrorism as our biggest national security threat.
The practice of law has also changed quite a bit in that amount of time, as firm founder, Flora Templeton Stuart, can attest. Flora began her law career four decades ago as the first female attorney to practice and litigate a case in court in Warren County, KY and she continues to be one of the leading female attorneys in Kentucky and Tennessee.
One of the biggest changes the practice of law has seen over the last few decades is the decline of the jury trial. According to a recent report, the number of civil jury trials held in the state of Kentucky from 2005 to 2015 fell from 292 to 118. There are even fewer jury trials in the federal courts. As of mid-October, there had only been three held in 2016 in the U.S. District Court in Louisville.
The reason for this decline is not a decrease in the number of cases being filed, or a lack of justice being served. What is happening is that more and more cases are being resolved at the settlement stage or by mediation or arbitration.
What Is Settlement?
The vast majority of all civil cases are resolved before either party steps foot in the courtroom. In fact, many cases are actually wrapped up before a lawsuit is even filed. When all the parties in a case come to an agreement about what should happen (like who should give money to who, and how much) it is said that the case has settled.
When a case is settled, all the parties sign a document that says what they agreed to. They also typically agree not to sue each other again over this topic unless someone does something that goes against the settlement.
What Is Mediation?
Mediation is a good way to resolve cases when the parties cannot agree on a settlement, but do not want to take the time and spend the money to arbitrate or go to court and have their case heard by a jury.
In a mediation, a neutral third party talks to all the parties involved in the case and works with them to help them come up with a fair settlement that everyone can agree on. They try to get the parties to see where they are in agreement and look for common ground.
Sometimes the mediator can’t get the parties to agree to a settlement, and the case ends up going to court or to arbitration.
What Is Arbitration?
In an arbitration, a neutral third party, oftentimes a retired judge, talks to all the parties involved in a case, looks at the evidence, and then makes a decision that the parties have to accept.
Arbitration is an alternative to litigation. Except in very rare circumstances, a case that goes to arbitration is never going to go to trial.
How Do You Decide Which Cases Should Go To Trial?
Deciding whether or not to take a case to trial is a decision that only the parties in the case can make. The attorneys have to do what the parties want. Once clients learn about settlement, mediation, and arbitration, many of them choose not to go to trial.