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Copyright (c) 2013 The University of Texas School of Law
The Review of Litigation

ARTICLE: Trial by Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases

Summer, 2013

The Review of Litigation

32 Rev. Litig. 431


Stephen D. Susman and Thomas M. Melsheimer*


I. Introduction
For many years, trial lawyers and judges have been decrying attacks on the jury system. 1 These attacks have taken many forms and the participants have come from all branches of government and the citizenry. Some of the attacks are quite explicit. Legislatures can eliminate or make more difficult the pursuit of certain claims, such as medical malpractice. 2 This has sometimes been called "tort reform" and dates back several decades, 3 but the causes of action affected have not been limited to traditional torts. Courts can make it easier to dismiss claims by (1) heightening pleading requirements prior to discovery, (2) relaxing standards for granting summary judgment prior to a jury trial, and (3) making it impossible for the plaintiff to prevail by precluding expert testimony or refusing to certify class actions. 4 Potential litigants can, by written contract, force future disputes into binding arbitration, where the role of the court is limited, with a few exceptions. 5 Potential jurors too have had a hand in "attacks" on the system by refusing to show up for jury service or by aggressively seeking ways to avoid such service. 6

Other attacks on the jury system are less explicit but also play a role in what several commentators have called "the vanishing jury trial." 7 Judges, who are understandably interested in managing congested dockets in a court system that is often resource-strapped, encourage alternative forms of resolution outside the courtroom, such as mediation. 8
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