Courtroom plea: Try, don’t settle, civil cases

By Paemon Aramjoo

You, the plaintiff’s attorney, are meeting with a client in the early months of 2024. They have had a devastating injury that has impacted their life in innumerable ways.

While you have tried to resolve their matter without having to file a lawsuit, you are not aligning with the adjuster. Let’s be real; the adjuster does not see the pain and suffering in the same vein that you do or, frankly, your client does.

Your client is fearful of what happens next. Your client is worried about the process — depositions, written discovery and, most frightening of all, having to appear in court.

Your client looks at you, as their trusted attorney, and asks the question that many clients ask: “Will my case go to trial?”

In 2020, the American Bar Association Commission on the American Jury released “Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges,” a four-year study based on a survey of 1,460 attorneys and judges. The results provided insight into some staggering statistics which provided that “[i]n states that maintain accurate records of bench and jury trials, jury trial rates … declined. From 1976 through 2002, civil jury trial rates fell from 1.8 percent to 0.6 percent.”

Further, the study found that “[a]lthough civil case filings in federal courts, where the data are most reliable, have increased fourfold since the early 1960s, the percentage of civil cases disposed of by jury trial decreased from approximately 5.5 percent in 1962 to 1.2 percent by 2002 and to 0.8 percent by 2013.”

“Full justice”

Often, a courtroom is the only place where full justice can be obtained for our clients. We all know that a settlement means that a resolution was reached, which likely means that someone got less than they may have otherwise deserved. This happens for all sorts of reasons, but we have to ask if this is the best outcome for the litigants and the community that is affected by the case.

The trajectory of how cases are often resolved is that someone does something wrong, an attorney gets involved, bargaining begins and a trade is made in which silence is often paid for and the community knows no better.

Does this system of settling cases end up better for us all? Isn’t the jury system what we, as Americans, take most pride in, a system in which our community decides what is right and what is wrong?

Jury trials are risky and costly and are not timely. But doing the right thing is not always doing the easy thing. Doing the right thing is sometimes riskier and more expensive and might take time.

We, the litigators, are slowly losing the jury trial and all the benefits it has to offer, and now is the time to change this before the already disappearing trial becomes obsolete altogether.

Needed process

The statistics should leave a gut-wrenching thought: The community is being stripped of a process we had agreed the community should be involved in.

George Washington is quoted as saying, “There was not a member of the Constitutional Convention who had the least objection to what is contended for by the advocates for a Bill of Rights and trial by jury.”

John Adams agreed, saying, “Representative government and trial by jury are the heart and lungs of liberty.”

I am not only a plaintiff’s attorney; I also have unfortunately been one’s client. I suffered the loss of my father and agreed to settle the case pre-suit. But there have been many days when I have considered what the community would have felt was appropriate compensation or whether having my story told might have, by some token, provided otherwise unavailable closure to the tragedy that occurred.

Risk is a factor that cannot be ignored when deciding to take a case to a jury. Turning a decision over to 12 people to decide the cost of a life-changing event is terrifying. Trust in the community is essential to be able to walk into a courtroom and believe that the right thing will be done.

This is not to suggest that the right thing will always be favorable to our client. The community has neither pledged nor taken an obligation to decide cases in favor of any one side. This is to say that the people who decide what is right or wrong are in the community in which the wrong occurred.

The fewer trials that are occurring cause us to lose the pulse of the community as to what is important and what ought to be done. Backroom settlements that close the door on the community’s awareness of what happened might resolve risk and be cheaper and quicker, but I’d posit that that might not always be the right thing to do.

This is written by someone who has suffered a personal tragedy and is now carrying the burden of responsibility to try cases for my clients. Win or lose, I will spend my career trusting the community to do what is right, and I would urge others to take that responsibility as well so that we might again try cases and our communities decide what is right or wrong.

I urge you, as the plaintiff’s counsel, to try more cases in 2024 and beyond.

Paemon Aramjoo practices law in Kansas City, Mo. •