Civil Jury Trial Bench Bar Task Force Final Report

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					       The United States District Court
   for the Middle District of Pennsylvania

   Civil Jury Trial
Bench/Bar Task Force

                Final Report

                       October 2, 2008

Middle District of Pennsylvania Civil Jury Trial Bench/Bar Task Force Final Report ▪ Page 1
                                           TABLE OF CONTENTS

Welcome from the Chief Judge.....................................................................................ii

Members of the Civil Jury Trial Task Force...............................................................iii

I.         Introduction........................................................................................................1

II.    The “Vanishing” Civil Jury Trial: Nationally..............................................2

III. The “Vanishing Civil Jury Trial:
     The Middle District of Pennsylvania............................................................5

IV.        The “Vanishing” Civil Jury Trial: Causes and Concerns.........................8

      A.       Alternative Dispute Resolution...............................................................10

      B.       Discovery.......................................................................................................11
      C.       Uncertainty of Jury Verdicts ..................................................................14

      D.       Increase in the Use and Success of Dispositive Motions...................15

      E.       Lack of Trial Experience Among Lawyers and Judges......................16

V.         Potential Action Steps.....................................................................................17

Page 2 ▪ Middle District of Pennsylvania Civil Jury Trial Bench/Bar Task Force Final Report
Dear Colleagues:

     Last Spring, in addressing members of the trial bar of the Middle District of
Pennsylvania, I expressed concern over what I perceived as a steady decline in the
number of civil jury trials in our district, and in federal courts across the nation.

       While applauding the responsiveness of our court and bar to the call for
alternative dispute resolution, I urged the trial bar to consider whether the drastic
decline in the number of civil jury trials may have practical consequences and
constitutional implications not anticipated by our efforts at good case management.

       I believe that public confidence in an impartial judiciary is the very keystone
of our democracy. Because our federal system of appointed judges is predicated on
civic participation and the meaningful right to jury trial, I questioned whether, as
juror participation declines, so may public confidence in our federal courts. With
these concepts in mind, I challenged twelve of our district’s most accomplished trial
lawyers to devote one year to studying and discussing the important issue of the
declining number of civil jury trials.

       The twelve distinguished lawyers named on the following page
enthusiastically responded to my challenge. For the last year, they have researched
and debated all facets of civil trial practice in our court, and candidly discussed with
me and Judges Caputo and Conaboy what they saw as potential impediments to the
full exercise of the right to jury trial. Our discussions were lively and informative. I
am sure that we will be better judges and lawyers for the experience. I am also
certain that the findings and recommendations will lead to a better understanding
of the importance of the jury trial and to those steps we must take to ensure that
the jury trial is preserved.

      The report and findings offered here are the product of many hours of
dedicated service by the trial attorneys who served as the Civil Jury Trial
Bench/Bar Task Force, as documented by members David R. Fine, Esq.; Lucille A.
Marsh, Esq.; and Thomas B. Schmidt III, Esq. The Middle District bench and bar is
indebted to them for their extraordinary service and professionalism. Please join
me in carefully considering their report and recommendations and in thanking
them for this significant contribution to the administration of justice.


                                        Yvette Kane, Chief Judge
                               Zygmunt R. Bialkowski, Jr.
                                Margolis Edelstein/Scranton

                                 Kimberly D. Borland
                          Borland & Borland LLP./Wilkes-Barre

                                     David R. Fine
                                K&L Gates LLP/Harrisburg

                                  Susan J. Forney
                  Pennsylvania Office of Attorney General/Harrisburg

                                Walter T. Grabowski
                     Holland Brady & Grabowski, P.C./Wilkes-Barre

                                 David E. Lehman
                        McNees Wallace & Nurick LLC/Harrisburg

                                 Timothy G. Lenahan
                            Lenahan & Dempsey, P.C./Scranton

                                    Lucille Marsh
                        Kreder Brooks & Hailstone LLP/Scranton

                              Bridget E. Montgomery
                   Eckert Seamans Cherin & Mellott, LLC/Harrisburg

                                Thomas B. Schmidt, III
                             Pepper Hamilton LLP/Harrisburg

                                   James A. Swetz
                      Cramer, Swetz & McManus, P.C./Stroudsburg

                                Jayson R. Wolfgang
                      Buchanan Ingersoll & Rooney P.C./Harrisburg

                         JUDICIAL LIAISON MEMBERS
                              The Honorable Yvette Kane
                       Chief Judge, Middle District of Pennsylvania

                          The Honorable A. Richard Caputo
                          Judge, Middle District of Pennsylvania

                          The Honorable Richard P. Conaboy
                          Judge, Middle District of Pennsylvania

Page 4 ▪ Middle District of Pennsylvania Civil Jury Trial Bench/Bar Task Force Final Report

                                 I.   Introduction
      The Seventh Amendment to the United States Constitution provides that

“[i]n suits at common law, where the value in controversy shall exceed twenty

dollars, the right of trial by jury shall be preserved . . . .”          This is not an

anachronism. In the early 1990s, Professor Geoffrey Hazard of the Yale Law School

expressed the consensus: “The most conspicuous characteristic of American civil

procedure is the jury system . . . . Jury trial in civil cases, as well as being

constitutionally guaranteed, is regularly employed and enjoys strong popularity.

Far from being a constitutional relic, jury trial is the usual form of trial and is the

model for trials in which a jury is not employed.” 1

      A scant 10 years later, William G. Young, Chief Judge of the District of

Massachusetts, while concurring in this vision of the jury trial as “one of the two

defining features of our legal system,” 2 would also thunder that “the American jury

system is dying out – more rapidly on the civil than on the criminal side of the

courts and more rapidly in the federal than in the state courts – but dying

nonetheless.” 3

      That dramatic change in the actual role of the civil jury trial is the subject of

this report, which summarizes the work of a Task Force appointed by Chief Judge

Yvette Kane in June 2007. Judge Kane charged the members of the Task Force to

consider the implications of the “vanishing” jury trial for the public participation

that makes that Seventh Amendment right meaningful. While this report cannot

be definitive in explaining the causes for the “vanishing” jury trial, or final in its

INTRODUCTION 128 (New Haven 1993).
2      Hon. William G. Young, Vanishing Trials, Vanishing Juries, Vanishing Constitution,
40 Suffolk U.L.Rev. 67, 68 (2006).
3      Id. at 73 (quoting his own opinion in United States v. Reid, 214 F. Supp. 2d 84, 98
n.11 (D. Mass. 2002)).
recommendations, we hope it is a useful contribution by the bench and bar of the

Middle District to the preservation of that vital constitutional guarantee.

       The Task Force met in several locations in 2007 and 2008. This report offers

a summary of the Task Force’s discussions and suggestions.

                    II.    The “Vanishing” Civil Jury Trial:
       At the beginning of this decade, a number of federal judges, scholars and bar

organizations began to express concerns about the “vanishing” civil jury trial. Most

of those concerns sprang from the fairly simple observation that the number of civil

jury trials had declined steadily since the mid 1980s, even while the number of

federal court civil filings had risen.

       The American Bar Association Section of Litigation established “The

Vanishing Trial” project, which culminated in a December, 2003 symposium and the

publication a year later of papers presented at that symposium in Journal of

Empirical Legal Studies, where the pertinent statistics were collected in the lead

article by Marc Galanter, The Vanishing Trial:               An Examination of Trials and

Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (Nov.

2004) (“Galanter”).
       Professor Galanter’s analysis covered the 40-year period from 1962 to 2002.

He found that dispositions of civil matters in that period increased five-fold, from

50,000 to 250,000. But, as a percentage of dispositions in 2002, those by trial were

less than one-sixteenth what they had been in 1962: in 1962, 5,820 (11.5%)

dispositions were by trial, while in 2002 trial dispositions were 4,569 (1.8%). In

fact, the decline in trial dispositions was steeper than those numbers suggest, since

Page 6 ▪ Middle District of Pennsylvania Civil Jury Trial Bench/Bar Task Force Final Report
the number of trials peaked in 1985 at 12,529. From that high until 2002, the

number of trials in federal court declined by more than 20 per cent. 4

       These declines in the number of trials and the percentage of cases going to

trial are displayed in the following charts: 5

Number of Federal Civil Cases Going to Trial

                  Year            Jury Trials        Bench Trials       Total Trials

                  1962              2765                3037              5802

                  1972              3361                4807              8168

                  1982              4471                6509             11280

                  1992              4279                3750              8029

                  2002              3006                1563              4569

Percentage of Federal Civil Cases Going to Trial

                  Year            Jury Trials        Bench Trials       Total Trials

                  1962              5.5%                 6.0%             11.5%

                  1972              3.7%                 5.3%               9.1%

                  1982              2.6%                 3.5%               6.1%

                  1992              1.9%                 1.6%               3.5%

                  2002              1.2%                 0.6%               1.8%

       Professor Galanter summarized much of his analysis by stating that “[t]he

decline in the rate of civil trials in the post-World War II federal courts continues

4      Galanter at 460-61. Of course, there are statistical nuances (for example, a “trial” is
any contested hearing before a jury or court at which evidence is introduced, and not only a
proceeding resulting in a verdict; for another example, the numbers are probably overstated
by those trials during which a settlement was reached). For the nuances, see Galanter.
Adjusting for the nuances, however, does not significantly change the observation of a
decline in the absolute number of trials and their relationship to case dispositions.
5      See Galanter at 462-63.
and accentuates a long historic trend away from trial as the mode of disposing of

civil cases.” 6

       Professor Galanter’s conclusions are complemented by a focused analysis of

tort cases in the district courts in fiscal year 2002 – 2003 by the United States

Department of Justice. 7 About 20 per cent of the civil cases terminated in 2002-03

were tort cases; only about two per cent of those terminations were by bench or jury

trial. 8 Cohen found that:

       After falling slightly during the 1970’s, the overall number of tort trials
       increased more than 50% from 2,315 in 1980 to 3,604 in 1985. A
       substantial portion of this growth can be attributed to an increase in
       asbestos product liability trials. The separation of asbestos from
       product liability cases began in fiscal year 1984 but was not completed
       until the late 1980’s. An increase in asbestos trial litigation in the
       mid-1980’s, which at that time was not counted separately, contributed
       to the rise of tort trials during that period.

       From 1985 to 2003, the overall number of tort trials has declined 79%.
       Tort trials fell to 2,108 in 1990 and then to 1,147 in 2000. By 2003,
       U.S. district court terminated fewer than 800 tort cases by trial. Tort
       cases decided by trial as a percentage of all tort terminations have also
       declined from about 10% in 1985 to 2% in 2003. 9
       The American College of Trial Lawyers published The “Vanishing Trials”:

The College, The Profession, the Civil Justice System (October 2004) (“ACTL

Report”), relying on the data collected and analyzed by Professor Galanter as well

as reports by the Federal Judicial Center and the U.S. Department of Justice. The

College also conducted an unscientific poll of its own members, who not surprisingly

corroborated the data with their own anecdotal observations.

6      Id. 461 – 64.
7      Thomas H. Cohen, Federal Tort Trials and Verdicts, 2002-03. U.S. Department of
Justice, Office of Justice Programs, Bureau of Statistics Bulletin NCJ 208713 (August 2005)
(“Cohen”), available at
8      Interestingly, according to Cohen, about 71 per cent of those trials were by a jury.
9      Cohen (footnotes omitted).

Page 8 ▪ Middle District of Pennsylvania Civil Jury Trial Bench/Bar Task Force Final Report
       Like Professor Galanter, the College devoted most of its report to probing the

possible causes of the decline in the number of civil jury trials, which are the subject

of Part IV of this report.

                  III. The “Vanishing” Civil Jury Trial:
                   The Middle District of Pennsylvania
       The experience of the U.S. District Court for the Middle District of

Pennsylvania is consistent with these national trends. Statistics from the

Administrative Office of the United States Courts indicate that the Middle District

of Pennsylvania is first in the Third Circuit and twentieth in the nation in the

number of trials per judgeship. Despite that, the Middle District of Pennsylvania

has seen the same decline as the rest of the nation in the number of civil trials –

both jury and non-jury. 10

10    The Middle District of Pennsylvania’s trial statistics are calculated for fiscal years
running from October 1 to September 30.
Page 10 ▪ Middle District of Pennsylvania Civil Jury Trial Bench/Bar Task Force Final Report
          The Task Force reviewed data showing that, in 2004, there were 51 civil jury

trials in the Middle District of Pennsylvania but that, by 2007, that number had

decreased to 39. As of the beginning of September 2008, there were 29.

          In those areas that traditionally lend themselves to jury trial, in 2004 there

were eight tort cases, seven personal-injury cases and 22 civil-rights cases tried by

juries in the Middle District of Pennsylvania. 11 By comparison, in 2007, there were

six tort trials, eight personal-injury trials and 14 civil-rights trials. In those three

categories alone, which comprised approximately 72 per cent of all of the cases

resolved by jury trials for those years, the number of jury trials declined by 24 per

cent (from 37 in 2004 to 28 in 2007). 12 To further illustrate the trend, there were
2,433 civil case filings in the Middle District of Pennsylvania in 2007. Only 2.9 per

cent were ultimately resolved by trials, and only two percent were resolved by jury


          It is important to note that, during this same time period, the number of

cases referred to mediation in the Middle District of Pennsylvania increased from

80 cases in 2004 to 221 cases in 2007. While the court has had a mediation program

for some time, the rate of referrals (some mandatory) has increased substantially in

the last decade.

11        The “tort” cases are presumably non-personal-injury cases.
12     The court classifies civil case filings in the following categories: Civil Rights and
Prisoner Petitions; Personal Injury/Liability; Social Security; Forfeitures, Penalties and Tax
Suits; Real Property; Labor Suits; Contracts; Torts; Copyright, Patent and Trademark;
Antitrust and all others.
                    IV.    The “Vanishing” Civil Jury Trial:
                              Causes and Concerns
       The statistics offered in the previous sections of this report demonstrate
beyond question that, while the number of civil actions filed has risen in recent

years, the number of civil jury trials has declined, nationally and in the Middle

District of Pennsylvania. However, those statistics cannot tell us with any precision

the causes for the “vanishing” civil jury trial. 13

       The Task Force believes there are a number of factors that, collectively, have

caused the decrease in the number of civil jury trials. In summary, they include the


13      The discussions of the causes for the diminution in the number of civil jury trials
and the recommendations in this report represent consensus rather than unanimous views
of the Task Force.

Page 12 ▪ Middle District of Pennsylvania Civil Jury Trial Bench/Bar Task Force Final Report
       ●    The increasing use and success of alternative dispute resolution
       (“ADR”) processes.

       ●      The increasing depth and cost of discovery.

       ●      Delay in resolution of cases by jury trial.

       ●     The uncertainty of jury verdicts (or the perception of such

       ●     The increased filing and granting of dispositive motions, most
       particularly summary judgment motions.

       ●     The lack of trial experience by both lawyers and judges (and the
       attendant reluctance to try cases).

       The Task Force considered causes both at the national level and in the

Middle District of Pennsylvania. The Task Force acknowledges that certain of these

asserted causes may not be as significant in the Middle District of Pennsylvania as

in other venues. Indeed, except as noted, most of the observations of the Task Force

regarding the Middle District of Pennsylvania are anecdotal because there has been

no structured research and resulting statistics. The Task Force believes, however,

that those observations have sufficient validity in light of the diversity of the Task

Force’s experience. 14

              A.     Alternative Dispute Resolution

       Task Force members (including both judges and lawyers) agree that the

increased use of ADR procedures is almost certainly a cause of the decrease in the

14      As noted at the outset of this report, the Task Force included district judges from
various parts of the district and lawyers who are diverse in terms of geography (essentially
every part of the district was represented), years in practice and types of practice (members
included lawyers in the public sector and the private sector; and those in the private sector
included both plaintiffs’ and defendants’ counsel in a variety of fields (e.g., commercial
litigation, personal injury and employment law).
       Importantly, this report does not purport to be exhaustive, and there are likely other
causes (and effects) of the decreasing number of civil jury trials that are not addressed in
this report.
number of civil jury trials in the Middle District of Pennsylvania. The anecdotal

link observed by the Task Force between ADR and the decreasing number of jury

trials is strong, and there is significant literature to support the proposition. 15

          There are a number of ways in which ADR decreases the number of civil jury


          First, parties to civil matters increasingly seek mediation to resolve their

disputes. Many courts, including the Middle District of Pennsylvania, sponsor and

encourage use of their own, court-annexed mediation programs. 16
          As demonstrated in the chart reproduced earlier in this report, the Middle

District of Pennsylvania’s own statistics demonstrate the dramatic rise between

2000 and 2008 in the number of cases mediated. While the statistics noted above

suggest that the success of mediation has fluctuated (e.g., more than half of the

cases sent to mediation in 2000 settled, while fewer than half sent to mediation in

2006 did), for present purposes the important fact is that an increasing number of

the Middle District’s civil cases settle through mediation (e.g., 33 cases ended

through mediation in 2000, while 102 ended through mediation in 2006). 17

          Second, an increasing number of parties to contracts agree to resolve their

disputes by arbitration. 18

15     See, e.g., Galanter; ACTL Report; Boston Bar Association, “Report of the Boston Bar
Association Task Force on the Vanishing Jury Trial” (2006) (“Boston Bar Association
16    The Middle District of Pennsylvania offers a comprehensive description of its
mediation program on its Internet web site. See
17      With respect to ADR as well as the other factors discussed in this section, it is not
possible to draw a direct correlation between a particular factor and the ultimate fact that
there has not been a jury trial because there are too many variables. For example, if a case
settles through mediation, that might well be the reason there was no jury trial. However,
it is possible that, had the case not settled, it would have been resolved by summary
judgment or some other resolution short of a jury trial. Thus, the Task Force recognizes
that these factors do not have an absolute cause-and-effect relationship with the decreasing
number of civil jury trials, but it nonetheless believes that these various factors may safely
be presumed to have some substantial effect.
18     This includes situations in which parties are compelled by judicial determination to
arbitrate their claims even though they argue that they are not bound by the agreement or

Page 14 ▪ Middle District of Pennsylvania Civil Jury Trial Bench/Bar Task Force Final Report
       National studies have suggested that ADR has resulted in a meaningful

minority of cases being “diverted” from court proceedings. One study suggested

that, in 2001, one-seventh of the cases filed in federal courts were diverted to some

form of ADR. 19 It is difficult to assess with any precision the effect of arbitration on

the number of civil jury trials in the Middle District of Pennsylvania for two

reasons: first, the court keeps no statistics on the number of cases in which the

litigants, after initiation of litigation, either agree to arbitrate or are compelled to

arbitrate; and, two, a certain number of cases that would otherwise result in court
filings never reach litigation because the parties submit them in the first instance

to arbitration.

       Nonetheless, it is plain that ADR has, both nationally and in the Middle

District of Pennsylvania, resulted to one degree or another in a decrease in the

number of cases proceeding toward jury trials. 20

              B.      Discovery

       The Task Force noted that, both anecdotally and statistically, the complexity,

length and expense of discovery in the federal courts have generally increased in the

last few decades. For many litigants, including both individuals and businesses, the

that the agreement is for some reason unenforceable. See, e.g., Gay v. CreditInform, 511
F.3d 369 (3d Cir. 2007).
19     See Thomas J. Stipanowich, ADR and the “Vanishing Trial”: The Growth and Impact
of “Alternative Dispute Resolution,” 1 J. of Empirical Legal Stud. 843 (2004)
20      The Task Force noted as well that some judges of the Middle District of
Pennsylvania employ what are known as “summary jury trials.” In a summary jury trial,
citizens are selected to serve on the jury, the lawyers offer a truncated version of their cases
and the jury deliberates to a non-binding verdict. The goal is to allow counsel and parties
to see how a jury reacts to the case with the idea that such insight will facilitate settlement
added imposition and expense of discovery serve as a disincentive to initiating

litigation in the first place or as an incentive to settle litigation once commenced. 21

       Research suggests that the issue is complex. While most involved in federal

civil litigation have a strong sense that the cost of discovery has increased, studies

in the last decade indicate that a substantial number of cases conclude with

essentially no discovery. 22 However, in those cases in which substantial discovery

occurs, that discovery is more extensive and expensive than discovery in similarly

situated cases litigated in the 1970s. 23

       The reasons for the expansion of discovery in at least a substantial number of

federal cases are many. First, the applicable Federal Rules of Civil Procedure and

judicial interpretation of them are understood by many to allow broad discovery.

Second, there are those litigators (and litigants) who affirmatively use discovery not

for the legitimate purposes it is intended to serve but as a tactical means to oppress

litigation opponents. Third, it is inherently difficult for judicial officers to manage

discovery. Judges and magistrate judges have heavy caseloads (both on the civil

and on the criminal sides of their dockets). Resolution of many discovery disputes

relies on either a complex knowledge of the case or a determination of whether

certain documents or information exist, and busy trial judges are often not well-

situated to resolve such disputes.

21     The Task Force’s impression is supported by the results of a 2008 survey of the
fellows of The American College of Trial Lawyers. The American College of Trial Lawyers
Task Force on Discovery and the Institute for the Advancement of the American Legal
System published an interim report on September 9, 2008 (the “Interim Report”),
summarizing the survey responses and identifying as one of their major themes that
“deserving cases are not brought because the cost of pursuing them fails a rational cost
benefit test, while meritless cases, especially smaller cases, are being settled rather than
being tried because it costs too much to litigate them.” Interim Report at 3. Other survey
results echo the observations and recommendations found in this Task Force report. The
Interim      Report     is     available    at
22     See ACTL Report at 16-17.
23     Id.

Page 16 ▪ Middle District of Pennsylvania Civil Jury Trial Bench/Bar Task Force Final Report
      Some on the Task Force voiced a concern that judges faced with discovery

disputes are sometimes inclined to allow broader discovery because they read the

relevance requirements more liberally than they should, in part because they

assume such an approach will fare better on appeal (i.e., courts of appeals

sometimes find reversible error when an appellant has been denied discovery but

rarely find reversible error based on overbroad discovery unless some sort of

privileged or confidential information is at issue).

      The Task Force has also observed that there has been an increased reliance

upon expert testimony in the last decade. 24        Expert testimony invariably adds

expense – often significant expense – to a case in a number of ways. The party

proffering the expert bears the expense of the expert’s fees and costs as well as the

added lawyer time required to work with the expert. The party opposing the expert,

if it has not already determined that it will employ an expert, often believes it must

engage an expert to “even the playing field.”

      Fifteen years ago, the Supreme Court decided Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579 (1993), which called upon trial judges to serve as

“gatekeepers” to ensure the reliability of testimony offered under Federal Rule of

Evidence 702 (the rule describing expert testimony).          One result has been an

increase in the number of motions (known as Daubert motions) by which one side

asks the court to strike the other side’s expert.       In order to resolve a Daubert

motion, a district judge must at least review the arguments and evidence offered by

counsel, and the judge may well be required to hold an evidentiary hearing. 25 For

counsel and their clients, a Daubert challenge invariably adds the expense of

briefing and of a potential hearing.

24     See Imwinkelreid, Impoverishing the Trier of Fact: Excluding the Proponent’s Expert
Testimony Due to the Opponent’s Inability to Afford Rebuttal Evidence, U.C. Davis Legal
Studies Research Paper No. 104 (2007).
25    See Oddi v. Ford Motor Co., 234 F.3d 136, 153-54 (3d Cir. 2000).
       Finally, there is a component of discovery that has only recently become a

significant issue. With the almost universal use of electronic information storage

and electronic mail, lawyers have found themselves devoting ever-growing attention

to what is termed “electronic discovery.” Electronic discovery often vastly increases

the scope, intrusiveness and expense of discovery and, correspondingly, the

likelihood of expensive discovery disputes. 26

       Individually or in the aggregate, each of these discovery issues adds to the

expense and inconvenience of litigation and, therefore, serves to one degree or
another as a disincentive for parties to continue litigation to the point of jury trials.

               C.     Uncertainty of Jury Verdicts

       The Task Force identified the perceived uncertainty of jury verdicts as

another cause of the diminution in the number of civil jury trials nationally and in

the Middle District of Pennsylvania.

       The uncertainty rationale rests on a belief that juries sometimes misperceive

(or ignore) the law described by the judge and the facts demonstrated by the

evidence to render essentially unpredictable verdicts. The belief seems more often

to be held by defendants and their lawyers. They see reports of verdicts that seem

disconnected from the law and facts or damages that appear excessive, and they

conclude that any jury trial poses the risk of an aberrant verdict on either liability

or damages – or both.

       It is worth noting that there is little research-based or empirical support for

the belief that juries frequently render such unusual verdicts. 27 The belief appears

to be the result primarily of prominent news coverage of a few jury verdicts that

26     See Martin H. Redish, Electronic Discovery and the Litigation Matrix, 51 Duke L.J.
561 (2001).
27     See ACTL Report at 18.

Page 18 ▪ Middle District of Pennsylvania Civil Jury Trial Bench/Bar Task Force Final Report
appeared inconsistent with the applicable law and facts or that resulted in

extraordinary damage awards. 28 That coverage has created a perception that such

results are more common than perhaps they actually are. 29

       For present purposes, however, it does not matter whether the belief is well-

founded. The point is that the perception exists, and the perception drives parties’

decision-making regarding whether to settle or to proceed to a jury trial.

              D.       Increased Use and Success of Dispositive Motions
       Studies have demonstrated that, in the last two decades, the number of cases

disposed of on summary judgment has increased. For example, a 2001 study by the

Federal Judicial Center sampled civil cases from six districts, (including the

Eastern District of Pennsylvania, but not including the Middle District of

Pennsylvania) and compared the data over time. The study found that, between

1975 and 2000, the number of cases in which summary judgment was granted in

whole or in part doubled. 30 Perhaps more important, the study showed that the

ratio between dispositions by trial and dispositions by summary judgment changed

dramatically.       In 1975, more than twice as many cases terminated with a trial

verdict than with a summary judgment. By 2000, more than three times as many

cases terminated with summary judgments than with trial verdicts. 31

28     Id. at 19.
29     There are other reasons for the perception. For example, many lawyers believe that
increasingly complex legal standards do not translate well into jury instructions that jurors
can understand and use.
30     See Joe S. Cecil, Dean P. Miletich & George Cort, “Trends in Summary Judgment
Practice: A Preliminary Analysis,” Federal Judicial Center at 3-4 (2001) (“Cecil, Miletich &
Cort”). There are no corresponding statistics to track summary judgments in the Middle
District of Pennsylvania.
31     Cecil, Miletich & Cort at 3. Another author examined the same ratio in the Eastern
District of Pennsylvania between 2000 and 2003 and determined that the ratio of summary
judgments to jury verdicts had risen to 4.7:1. See Stephen Burbank, Drifting Toward
Bethlehem or Gomorrah? Vanishing Trials and Summary Judgment in Federal Civil Cases,
1 J. Empirical Legal Stud. 591, 593 (2004) (“Burbank”).
       Some trace the increased use of summary judgments to terminate cases to

the well-known trilogy of Supreme Court cases in 1986 that underscored that

summary judgment is not disfavored in the federal courts. 32 Others do not see the

trilogy cases as a significant cause of the increase in summary-judgment grants and

instead see that trend beginning years – even decades – before the Supreme Court

decided the 1986 cases. 33 Whatever the cause of this statistical shift, the Task

Force believes there can be little question that the increasing prevalence of case

dispositions by summary judgment has contributed to the decrease in the number of
civil jury trials.

               E.     Lack of Trial Experience among Lawyers and Judges

       In the main, lawyers and judges have less experience trying cases now than

their counterparts did in 1962. A study by the Administrative Office of the United

States Court demonstrates that in 1962, on average, a sitting federal district court

judge presided over 39 trials (20.8 of them civil). 34 In 2002, on average, a sitting

district judge presided over 13.2 trials (7.4 of them civil). 35

       There are no corresponding statistics for lawyers, but there is ample reason

to conclude that the average lawyer has significantly less jury-trial experience than

his or her 1962 counterpart. As noted, the number of civil jury trials has decreased

32      See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Celotex Corp. v. Catrett, 477 U.S.
317 (1986). Prof. Arthur Miller, among others, has pointed to those cases as an important
factor in the statistical shift. See Arthur R. Miller, The Pretrial Rush to Judgment: Are the
“Litigation Explosion,” “Liability Crisis,” and Efficiency Clichés Eroding Our Day in Court
and Jury Trial Commitments, 78 N.Y.U. L. Rev. 982-1004-5 (2003).
33     See Burbank at 33-34. There can be little question that there are a number of
factors that have contributed to the increased role of summary judgment. For example, as
noted, in 1993, the Supreme Court decided Daubert and assigned to district judges a
gatekeeper role. One result has been that, in cases in which expert testimony is a
requirement of the burden of proof, the grant of a Daubert motion essentially mandates the
entry of summary judgment.
34     See Galanter at 521.
35     Id.

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in the last several decades, while the number of lawyers nearly tripled between

1962 and 2002. 36     While that statistic is far from conclusive (it does not, for

example, account for the increasing number of lawyers who practice in non-

litigation areas of the law), most contemporary litigators report anecdotally that

they try fewer jury cases than did litigators of just a few decades ago. 37

       Commentators have suggested that one result of this inexperience is that

both judges and lawyers are inclined to avoid jury trials. 38        They theorize that

lawyers with little or no experience advocating before juries will – consciously or

unconsciously – avoid trials by agreeing to settlements they would otherwise

eschew. 39
       This factor has more than a little of the “chicken or the egg” to it in that the

other causal factors likely reduce the number of civil jury trials, which then results

in judges and lawyers having less experience and a greater tendency to avoid civil

jury trials.

                          V.     Potential Action Steps
       Through the course of its discussions and deliberations, the Task Force

developed a number of recommendations to address the “vanishing” civil jury trial.

       It is critical, however, to make certain threshold points.
       First, as noted in a preceding section of this report, the Task Force identified

a number of likely causes for the diminution in the number of civil jury trials, but

36     Id. at 521.
37     Consider as well that there are more than a thousand lawyers admitted to practice
in the Middle District of Pennsylvania but only a few dozen civil jury trials each year.
Those numbers alone suggest that the majority of Middle District practitioners go for years
between jury trials (if they see jury trials at all).
38     See Galanter at 521-22.
39     Id.
the Task Force in no way claims any sort of statistical precision about those causes

generally or, more specifically, as they may be applicable in the Middle District of


       Second, while the premise of the Task Force’s work might suggest that the

diminution in the number of civil jury trials is a negative development, the Task

Force recognizes that there may be positive reasons for that occurrence (e.g., while

the increased use of ADR techniques such as mediation may lessen the number of

civil jury trials, most judges and lawyers appreciate the overall benefit to the

litigants and the judicial system from successful mediation). In a related sense,

many participants in the judicial process have disparate views about the

desirability of some of the identified causes (e.g., because the granting of summary

judgment most often benefits defendants, defendants and their counsel are likely to

regard the increased number of summary-judgment case dispositions as positive;

plaintiffs and their counsel likely hold a contrary view). For that reason, in making

the recommendations that follow, the Task Force neither seeks nor purports to “fix”

the “problem” of the diminishing number of civil jury trials. Instead, the Task Force

seeks to offer suggestions to alleviate some of the undesirable factors that might be

contributing to the trend. In making these suggestions, the Task Force recognizes

that some of the potential causes are not as prominent in the Middle District of

Pennsylvania as they are elsewhere such that the national statistics might not have

direct correlation.

       Third, a number of the recommendations that follow implicate judicial

procedure. While, in discrete circumstances, the Task Force suggests changes to

the Middle District of Pennsylvania’s local rules, most of the recommendations are

offered for the consideration of the court’s judicial officers. The Task Force respects

the discretion vested in individual judicial officers to prescribe procedures for

practice before them. Accordingly, this report does not purport to be a mandate.

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The Task Force instead invites both the bench and the bar to consider the

recommendations and the reasons underlying them as the beginning of a continuing

discussion that may result in helpful changes. 40

       Finally, these recommendations represent the consensus views of lawyer

members of the Task Force, but they do not characterize the views of each member

of the Task Force individually. More particularly, these recommendations do not

necessarily represent the opinions or practices of the judges who were part of the

Task Force.

Alternative Dispute Resolution

       The Task Force’s discussion of alternative dispute resolution tended to

underscore the value of appropriately employed ADR processes such as the Court’s

well-implemented and frequently used mediation program and summary jury trials

used by some of the judges to offer counsel and litigants a realistic sense of how

their cases will come across to jurors. Given the expense and potential uncertainty

of litigation, successful ADR can be of benefit to all litigants.

Recommendation No. 1
       While the Task Force generally and strongly endorses the use of ADR in the

Middle District of Pennsylvania, it believes it important that judicial officers

continue to scrutinize cases carefully before sending them to any sort of mandatory

ADR. Some courts are more aggressive than the Middle District of Pennsylvania

40      The group addressed a number of issues related to civil litigation but not directly
tied to the question of the diminution in the number of civil jury trials. Indeed, the minutes
reflect a significant number of recommendations members of the Task Force made during
deliberations. Because this report seeks to focus on the central theme of the Task Force’s
work, a number of those less-directly relevant recommendations are not included in this
report. They are, however, included in the Task Force minutes made available to the Chief
Judge and may warrant serious additional consideration at a later time.
with respect to forcing parties to mediate cases, and lawyers in those courts

anecdotally report that there are times when cases are involuntarily submitted to

mediation when either the nature of the dispute or of the sought-after remedy

makes clear that mediation will be ineffective. In such cases, forced mediation can

act in ways counter to ADR’s goal of streamlining and resolving litigation early and

expeditiously; indeed, it can needlessly add to the expense of litigation.

Discovery and Delay

         The Task Force offers a number of recommendations regarding the discovery

process. All of them seek to reduce unnecessary delay and expense in discovery

while, at the same time, ensuring that parties will be able to obtain information and

documents (whether paper or electronic) necessary to prove their claims or defenses

or test the claims or defenses of a litigation opponent.

Recommendation No. 2
Judicial officers should, where possible, define the scope of discoverable information

in the initial case-management order. Often, counsel are familiar enough with the

likely subjects of discovery that the judicial officer can confer with counsel to create

at least a rough outline of what discovery will take place and, correspondingly, what

discovery will not. Such a process may help to focus discovery and decrease its

length and expense.

Recommendation No. 3
Judicial officers should carefully assess at the outset of the case the extent to which

electronic discovery will play a part in the case, and the judicial officer should

describe the limits of such electronic discovery in the initial case-management

order.    Similarly, judicial officers should bear in mind in assessing discovery

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motions involving electronic discovery that such disputes often involve tremendous

volumes of electronically stored information.    The retrieval and review of such

material is often of a different character and magnitude than the retrieval and

review of information stored on paper, and the burden on parties and counsel is

often correspondingly different.

Recommendation No. 4
When resolving discovery disputes in which relevance is at issue, judicial officers

should enforce the limits on discovery imposed by Federal Rule of Civil Procedure

26(b)(1) (that is, that discovery should be limited to matters that are “relevant to

the claim or defense of any party.”). See 2000 Amendment to Federal Rule of Civil

Procedure 26(b)(1). Some judicial officers seem still to adhere to the broader scope

of discovery in the former version of Rule 26(b)(1), which allowed discovery into

matters relevant to the “subject matter” of the litigation. The Advisory Committee

notes to the 2000 amendment to the rule indicate that the amendment’s purpose

was to lessen discovery abuse and to focus the parties and the court on the actual

claims and defenses in the case.

Recommendation No. 5
Correspondingly, counsel should themselves seek to focus their discovery requests

in order to avoid imposing undue burden or expense on the recipient. While this

might seem counterintuitive to those dedicated to particularly aggressive litigation,

it is not.   Lawyers who promulgate oppressive discovery demands often invite

similarly burdensome demands. Such discovery proliferation often devolves into an

expensive, time-consuming and unnecessary sideshow.
Uncertainty of Juries

       It is inherently difficult to bring “certainty” to jury deliberations. Indeed, if

the outcome of a jury trial were in any sense certain, there would presumably be no

need for the trial as the predicted non-prevailing party would have an

overwhelming incentive to resolve the case before trial. Thus, the goal is not so

much to bring “certainty” to jury verdicts but to give litigants and their counsel

greater assurance that the jurors are given every tool to enable them to render well-

informed decisions.

Recommendation No. 6
Counsel should submit proposed jury instructions written in language that is likely

to be understood by jurors without legal training and experience, and judicial

officers should be willing to use such “plain-English” instructions. Lawyers and

judges sometimes cling to awkwardly written instructions that focus more on

parroting the language of statutes or judicial opinions than on ensuring that jurors

plainly understand what they are being asked to do.

Recommendation No. 7
Judicial officers should consider submitting written copies of their instructions to

jurors. The legal standards guiding juror deliberations are often complicated, and

jurors may have difficulty absorbing instructions read to them once in the


Recommendation No. 8
Judicial officers should consider allowing jurors to take notes during trials expected

to last more than a day or two. While experience demonstrates that jurors do a

surprisingly good job of retaining evidence, lengthy trials can tax even the most

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attentive (and retentive) juror’s ability to remember testimony and exhibits. The

common arguments against juror note-taking (i.e., missing testimony while writing

and undue reliance on the notes of one juror) can be overcome with careful

instructions to jurors. Since 2005, the Pennsylvania Rules of Criminal Procedure

have required trial judges to allow jurors to take notes in criminal trials expected to

last more than two days and have permitted trial judges, in their discretion, to

allow jurors to take notes in shorter criminal trials. Anecdotal reports suggest that

the state courts have found juror note-taking to be a positive development.

Prevalence of Dispositive-Motion Practice

      As with other subjects considered by the Task Force, the increase in the

number of cases disposed of by summary judgment cannot be characterized as

positive or negative.   To do so would require examining each file and making

judgments about the propriety of the summary judgment granted (or denied), a task

that is far outside the Task Force’s province or ability.       Thus, as with other

recommendations, those that follow with regard to summary judgment do not

purport to identify and correct problems but rather to suggest sound practices to

avoid potential problems.

Recommendation No. 9
Parties and their counsel should give careful consideration to the requirements for

summary judgment before filing such motions. Parties sometimes seek summary

judgment almost as a matter of course even though there plainly are genuine issues

of material fact demonstrated on the record.      Such summary judgment motions

impose delay and expense on the parties and additional burdens on the court.
Recommendation No. 10
Judicial officers should strictly enforce M.D. Pa. LR56.1, which requires the party

moving for summary judgment to file a separate statement of material facts in

numbered paragraphs with citations to the record and which requires the opposing

party to respond to each numbered paragraph and to support the response with

record citations. Counsel sometimes give little attention to these statements (and

responsive statements), a fact that diminishes the ability of Rule 56.1 to focus

counsel and the court on whether there are true and genuine disputes of fact that

should preclude summary judgment. Some lawyers opposing summary judgment

ignore the plain dictates of the rule and, instead, offer responses such as “See the

complaint,” “denied as stated” or “denied for lack of knowledge.” None of those

responses tracks the rule’s requirements, and none assists the court in determining

if there is a true dispute in the admissible evidence.

Recommendation No. 11
Counsel should request and judicial officers should strongly consider granting oral

argument on dispositive motions, particularly those for summary judgment. Oral

argument offers counsel and the court the opportunity to focus on the truly salient

points of motions that might on paper be terrifically complex. Such focus would

likely increase the court’s ability to assess accurately the propriety of summary

judgment accurately and reduce delay in the resolution of such motions.

Lack of Experience

       The Task Force recognizes, anecdotally, a significant potential for counsel

who have relatively little jury-trial experience intentionally or otherwise to avoid

taking cases to juries by recommending to their clients that they take settlements

that counsel would otherwise not endorse. The Task Force does not suggest this

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happens often, and it presumes that Middle District lawyers comply with their

ethical obligations to their clients, but it is not difficult to imagine that such jury-

trial-avoidance occurs.     In any event, lack of trial experience among lawyers

becomes a self-perpetuating problem. 41

      The first means of addressing the experience gap is through careful

consideration of the recommendations offered above. If their implementation would

result in even a modest increase in the number of civil jury trials, the experience

issue would be addressed at least to that extent.

Recommendation No. 12
Lawyers should consider accepting from the court pro bono assignments in which

jury demands have been made (e.g., civil-rights cases). Such cases are prescreened

by the court to ensure that the claims are at least colorable, and the issues are

generally narrow.

Recommendation No. 13
Bar associations with an interest in federal civil practice (e.g., the Middle District of

Pennsylvania chapter of the Federal Bar Association, the Pennsylvania Bar

Association, the county bar associations throughout the 33-county Middle District of

Pennsylvania) should consider creating (or, in some cases, enhancing) mentoring

programs in which more-experienced lawyers work with less-experienced lawyers to

teach them the practical aspects of trying cases before juries.

41     There is also a reasonable concern about the lack of ongoing jury-trial experience
among judges. While the Task Force does not suggest that any of the judges of the Middle
District of Pennsylvania are not fully capable of presiding over jury trials, it is fair to
recognize that a judge who has relatively few jury trials (civil or criminal) over a long
stretch of time may not be as familiar with the process.
Recommendation No. 14
The court should consider expanding its use of summary-jury trials in appropriate

cases.   Judicial officers who have presided over summary-jury trials have had

positive experience with cases settling afterwards, and the process allows both

judges and counsel to appear before juries (even if only in somewhat truncated


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