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Not your father’s kind of justice 

Now we settle, or let arbitrators and mediators decide.

click to enlarge PETER MILLER: Says most clients don't want to wait for trial.
  • PETER MILLER: Says most clients don't want to wait for trial.

The right to a trial by a jury of one's peers is still widely regarded as a great virtue of the American Way of Life. But statistics show that fewer Americans are exercising that right, at least in regard to civil lawsuits. We seem to have lost faith in our peers.

The number of lawsuits decided by juries has declined rather steeply over the last 40 years or so and the trend continues downward, as opposing parties choose other ways to resolve their differences. This decline causes considerable concern in some quarters. Is the quality of American justice declining also?

“The jury system is the best thing there is,” says Peter Miller, surely Arkansas's most recognizable lawyer. “The combined intellect of a jury is greater than any individual. When I'm standing before a jury, I think the best kind of justice in the world is going to be done.”

Yet Miller rarely stands before a jury, though he has a huge law practice, in part the result of his extensive advertising. His smiling face, seen on television, billboards and the back of the Little Rock telephone directory, is familiar to all. His office handles 600 to 700 cases a year, he says, and litigates 20 to 25. The number that actually go to a jury is even smaller. “Litigates” mean “files suit.” Most of Miller's clients settle before a suit is filed. A few more settle after the suit is filed.

Miller's kind of law practice wasn't around 40 years ago, at least not in Arkansas. A prominent old-school Little Rock trial lawyer, now deceased, said a few years back that people like Peter Miller, with their advertising, their numerous clients and their few trials, had taken the fun, and some of the worth, out of the practice of personal-injury law.

Most lawyers settle more cases than they litigate, as Miller points out. “The power that I have over an insurance-company lawyer is their fear that a jury will give me more money than they're offering,” Miller says. His fear is that the jury will give less, or none at all. “Ultimately, the client makes the decision,” Miller says.  Do client and lawyer want to take the risk of waiting a year or so for a trial they may lose, or do they want the bird in hand? Most laymen would take the bird even if their lawyer wasn't urging them to do so.  They may need compensation quickly, even at a discount. They may be distrustful of the whole court system.

But that's always been true, to some extent. Why is the number of jury trials falling even further now? Over the last 10 years, only about 1 percent of civil cases in Arkansas courts have gone to a jury. Once, the number would have been in the double digits. Up until about 1925, as many as 25 to 30 percent of civil lawsuits nationally went to a jury.

A 2007 study by the National Center for State Courts showed Arkansas in a group of about a dozen states that had fewer than 10 jury trials per 100,000 population. In fact, Arkansas was next to the bottom, with 6.6 trials per 100,000. Only Wyoming (6.4) had fewer. Alabama topped the list, at 59.2 trials per 100,000, followed by Illinois, with 46.7.

A drop in jury trials is visible at the federal level too. In 1962, 11.5 percent of the civil cases in U.S. district courts were tried by juries. By 2002, the percentage had dropped to 1.8. In the 12-month period that ended Sept. 30, 2008, the percentage was .9.

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