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Middlebrooks: Technology can preserve civil jury trials.

If lawyers want to preserve civil jury trials, they'll have to use technology to more efficiently conduct trials, end abusive discovery practices, and embrace modern technology.

Judge Don Middlebrooks said they should also embrace less restrictive regulation of lawyer advertising and be more tolerant when judges speak out about legal issues.

Middlebrooks, who sits on the U.S. District Court for the Southern District of Florida bench, was the speaker at the annual Chester Bedell Memorial Foundation luncheon at the Bar's Annual Convention.

"For 18 years, I've enjoyed seeing lawyers try their cases. I've seen devastating cross examinations, closing arguments that brought tears.... I was there at the drama of waiting for a jury to return its verdict," Middlebrooks said. "But each year I see less."

Fifteen years ago, the Southern District had 466 trials, 209 civil and 257 criminal. But last year, despite two more judges and a 22 percent increase in caseloads, there were only 233 trials, 91 civil and 142 criminal, he said, and those numbers mirror a national trend, which has actually been going on for 50 years.

Middlebrooks quoted a recent article by another judge, which was a mock obituary of the American trial lawyer. It cited the causes of "death" as increasing use of summary judgment, sentence enhancements, mandatory minimum sentences, abusive discovery, the failure to use reforms that would reduce the cost of litigation, the perception that judges are litigation managers, and a belief "that a jury trial is somehow a failure of the system."

The reasons for the decline of trials are not hard to fathom, he said: "Litigation is too costly; discovery is too expensive; and delays increase costs. There's also agreement that rule changes alone are not enough to solve the problems."

Chester Bedell and other past prominent trial lawyers did both civil and criminal cases and that can be instructive, Middlebrooks said.

"Civil lawyers can learn from those who practice criminal law with its speedy trial requirements and emphasis on investigation instead of paper discovery," he said. "We need to reexamine the way we try civil cases. Most are too long or too expensive and unnecessarily intrusive. People deserve their day in court and shouldn't have to wait a lifetime to get there."

Discovery is often used as a bludgeon rather than its intended purpose. He noted a recent survey showed for every 1,000 pages of material turned over in discovery, one is actually entered into evidence.

"There are a lot of haystacks being examined and not a lot of needles being found," Middlebrooks said.

The judge said he uses a "rocket docket" to set early trial dates, but called that "a very blunt instrument."

"A better way is for lawyers early in a case to map out a plan proportionate to the issues and the amount in controversy."

He also said lawyers must embrace and effectively use technology.

"Substantial portions of trials could be presented more effectively and persuasively through well-produced video," Middlebrooks said. "We have the equipment to make this possible and economical. What we don't have is lawyers who are trained to use computers in that way or rules that require lawyers to hone their skills."

He added lawyers should resist the temptation to do "Broadway-style productions" in such videos, and instead take their cue from YouTube where homemade videos successfully tackle complex issues.

"In an adversary system, it's hard to exercise restraint, but if we are to arrest the decline of trials, everyone will have to participate," Middlebrooks said. "Judges need to be more involved. Clients need to insist on limits. The proportionality requirement of the civil rules points the way. Nothing less than the preservation of the civil legal trial is at stake."

Lawyers also need to be more tolerant about both suggestions from judges and to lawyer advertising. He noted that the judge who wrote the mock trial lawyer obituary faced a recusal request from a tobacco company, not because of any fault in his legal rulings but because in the article he had praised lawyers for saving hundreds of thousands of lives and billions of dollars in medical care due to tobacco litigation. Another federal judge faced a complaint--of which she was exonerated--because of a talk at a law school examining the history and current legal status of the death penalty.

Law firms, Middlebrooks said, have been prevented by the Bar from touting in ads that they will hold corporations accountable or depicting changes in tort laws as anti-consumer because it can't be objectively verified. Yet other law firms can brag on billboards they won specific amounts for their clients because that can be verified.

He quoted past Bar President Wm. Reece Smith as saying "lawyers speak the language of liberty," and past ABA President (and former Bedell winner) Sandy D'Alemberte as noting that "trial lawyers serve as the connective link between people and institutions and government."

"Through excessiveness, we are litigating ourselves out of existence, and in limiting speech, we are ignoring that as trial lawyers we speak the language of liberty," Middlebrooks said.

"Thomas Jefferson described the jury trial as the only anchor ever yet imagined with which government can be held to the principles of its constitution. Like any anchor, it can dissolve and rust through lack of use and failure to maintain it. We share a responsibility to make sure the jury trial is renewed and protected.

"Were Chester Bedell practicing today, I can't say for sure he would outdo Steven Spielberg as a video producer, or outdo Apple as a marketer, but I do believe he would recognize that to continue to epitomize the best American trial lawyer, he just might have to do both."

By Gary Blankenship

Senior Editor
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Author:Blankenship, Gary
Publication:Florida Bar News
Date:Aug 1, 2015
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