The New York Times recently ran an article about the new trend for corporations to build into every contract for credit or goods an arbitration clause. Entitled “Arbitration Everywhere – Stacking the Deck of Justice,” the article points out how this trend is taking away the ability of a non-corporate plaintiff to get a jury trial if he believes he’s been wronged.
Back in July, the founder of a civil litigation boutique gave $2 million to New York University School of Law to study “the decline of the civil jury trial in American jurisprudence.” The New York Law Journal cited a Bureau of Justice Statistic that, from 1992 to 2005, the number of state court jury trials, held in the 75 most populous counties nationwide, went from 22,451 to 10,813. In federal court, the number of juries deciding civil cases dropped to less than one percent by 2005.
What does this mean for attorneys? Developing a theory for your case and practicing trial advocacy is no less important before an arbitrator, or a panel of arbitrators, than before a jury. The “trial” is called a “hearing” and while it is far less formal than a courtroom proceeding, the parties still make opening argument, question witnesses, and submit (or oppose) documentary evidence.
Investigation, theory, technique and persuasion is more important, not less, because of the non-judicial fact finder whose decision may be unreviewable. Whatever your feelings about the diminishment of the civil jury trial, the ability to persuade is still paramount, and all of your trial skills must combine to give your client the successful outcome she needs. TSI is here to help.