By Dr. Ken Broda-Bahm:
Many have noted that the American trial seems to be suffering a kind of death by discovery. “Just the amount of documents and discovery that you have to deal with before you ever get to a trial are so enormous that the costs are higher and it just bogs the process down,” Michigan Attorney Ron DeWaard was recently quoted. “That is one of the main things I’ve seen that has made it so expensive, and there is so much to do in terms of presentation that you don’t see a lot of trials." A new article in legal theory, however, raises the question of whether this decline might be driven, not simply by the volume of discovery, but also, by an imbalance in how well litigators know their audiences. The article, "Trial by Preview" (Huang, 2013), comes from Columbia Law School Professor Bert Huang, and argues that while nearly all civil litigants receive a voluminous preview of the evidence and arguments that will come in trial, only parties in bench trials receive their audience's reaction to that information as it emerges. "Because these reactions often provide a stronger reason to settle," Huang notes, "the bench trial is declining more swiftly than the jury trial."
"Parties settle not in the shadow of the 'true facts' about the case, after all," Huang writes, "but in the shadow of the expected verdict." The bottom line, based on evidence reported in the article, is that parties know more about expected verdict when the fact finder is a judge, and that is why bench trials are leading the overall decline in trials. In contrast to the "judicial preview" provided by the formal and informal pretrial communications from the bench, the future jury remains a kind of black box. In this post, however, I'll be providing a jury consultant's reaction to Huang's article, and arguing that future juries are more discoverable than we might think. The scope of modern discovery may or may not be a lodestone on the civil trial, but as long as discovery in jury trial focuses more on evidence and less on audience, then a lack of knowledge remains an obstacle to both trials and to good settlements.