Don't Try: Civil Jury Verdicts in System Geared to Settlement

Abstract:     
Our system of civil procedure is extremely elaborate, with rules for everything from service of process through argument on appeal -- but we don't use it. Only one or two percent of litigated disputes are adjudicated by a jury or a judge. Some cases are dismissed, voluntarily or involuntarily, but the great majority are resolved by settlement. In this article, Professors Gross and Syverud look at two samples of civil cases that did go to jury trial in California, in 1985-86, and 1990-91. The data show, among other things, that the work of these courts is dominated by personal injury cases; that these trials are very expensive and risky; and that the parties in these cases are generally not playing with their own money: the plaintiffs are financed by contingent-fee attorneys, and the defendants are financed by liability insurers. In terms of outcomes, the data show that verdicts tend to all-out victories for one side or the other rather than compromises. The authors describe the role of the jury trial in our settlement-dominated system of litigation. They argue that the cost and uncertainty of trials are used deliberately by lawyers and judges to persuade litigants to settle; that the inducements to do so are so successful that attempts to further reduce the trial rate are unlikely to work; and that the cases that do go to trial nonetheless are unrepresentative of the mass of civil litigation, and dominated by those disputes that are the most peculiar, the most intractable, and the most unpredictable.

JEL Classification: K41

Accepted Paper Series