Photo by Chris Martin

Last week I made two posts in the “Neophyte Lawyer” category, and none in “Practice Pointers.” So this week, to restore the cosmic balance, I will make two posts in “Practice Pointers.” Besides, not much is happening right now, Neophyte Lawyer-wise. Next week, I’ll have something to talk about.

The first post is about another bill passed by the 2011 Utah Legislature, H.B. 349. This bill, sponsored by Rep. Brian King (my state representative, and second cousin), creates a pilot project to test the feasibility of expedited jury trials.

The basic features of the pilot project are as follows:

  • All parties must agree to participate in an expedited jury trial. This agreement must be entered into only after a dispute has arisen and an action has been filed. Any party may file a motion requesting an expedited jury trial. The Judicial Council may by rule impose additional reasonable conditions on the process of opting into the expedited jury trial process.

  • The agreement to participate in an expedited jury trial must include the following: (1) waiving the right to appeal the verdict (except under limited circumstances); (2) waiving the right to move for a directed verdict; (3) waiving the right to file post trial motions except as permitted by Judicial Council Rule and U.C.A. § 78B-3-906; and (4) an agreed upon range of monetary damages that will be awarded regardless of the verdict if liability and allocation of fault are proved (a “high-low” range).

  • If the jury verdict is within the agreed range of monetary damages, the court shall enter the verdict as rendered. If the jury verdict is outside the agreed range of monetary damages, the court shall, as appropriate, increase or decrease the damages to the minimum or maximum agreed amount.

  • A party may move for a new trial or appeal a judgment only on the following grounds: (1) judicial misconduct; (2) misconduct of a jury; (3) corruption, fraud or other undue means preventing a party from having a fair trial; or (4) to correct errors of law.

  • Parties may only file post-trial motions relating to: (1) costs and attorney fees; (2) to correct a clerical error in a judgment; and (3) to enforce a judgment.

  • Juries shall be composed of no less than six jurors with no alternates, and may deliberate for as long as needed to reach a verdict.

  • The rules of evidence shall apply unless the parties stipulate otherwise.

  • The Judicial Council shall adopt rules and forms to establish uniform procedures for implementing the provisions of the expedited jury trial pilot project before July 1, 2012. The Administrative Office of the Courts shall report to the Judiciary Interim Committee no later than September 2016 regarding the program and a recommendation to continue or sunset the pilot project. The bill is automatically repealed on January 1, 2017.

According to Rep. King, these expedited jury trials are aimed toward mid-sized cases with damages in the $20,000 – $50,000 range. Originally, the bill provided that the trials would last no more than one day, with each side having a time limit of three hours to present their entire case, including opening statements and closing arguments. This provision was removed during the legislative process.

In addition, the Legislature added the provision that a motion for new trial or an appeal of a judgment may be based on correction of an error of law. This was not in the original provision.

This bill is patterned after a program enacted by the California Legislature. The California program only went into effect on January 1, 2011, so it might be a little too soon to judge its effectiveness. Most of the blogs and news sites reporting on it have been cautiously optimistic, with the exception of this blog, which says flat out that it won’t work. If anyone reading this is familiar with how that program is working, please feel free to let me know.

Neophyte Lawyer’s Thoughts: As with the majority of California bloggers, I am cautiously optimistic about this program. It is clear that our courts are becoming increasingly bogged down. And if there is a scheduling conflict between a criminal trial and a civil trial, it is inevitably the civil trial that gets bumped (after all, there are no constitutional mandates for a speedy civil trial).

In recent years, the Legislature has taken steps to address this problem. For example, in recent years the Legislature has expanded the arbitration process in third-party motorist claims (my senior partner and I recently wrote an article about this for the Utah Trial Journal), and in uninsured/underinsured motorist claims. Another bill passed in the 2011 Legislative Session, S.B. 52, established arbitration procedures for other tortuous acts. I’ll be writing about this bill on Wednesday.

The idea of creating limits on trials is appealing. In essence, it appears as if this bill will create trials similar to the mock trials law students argue in their Trial Advocacy classes (at least, it sounds like what we did in my Trial Advocacy class at the University of Utah).

Speeding up the process, and limiting the appeals, pre- and post-trial motions, etc., will undoubtedly appeal to clients wishing to see their day in court. It should also appeal to potential jurors. The possibility of completing their jury duty responsibilities in one day is bound to make them happier. As Daniel Schwartz at the Connecticut Employment Law Blog stated a few months ago about his experience with jury duty:

On a Friday, moods start to shift from a grudging willingness to take part in the morning, to near hostility to the process by mid-afternoon. As an attorney, it’s a good reminder that you can’t beat the clock or the calendar. Keeping potential jurors late in the day is a sure way to make enemies.

Anything we can do to make potential jurors happier is, as Martha Stewart is wont to say, a good thing….

There are problems with H.B. 349, however. The biggest problem in my opinion is the amendment that allows appeals and motions for new trials to correct errors of law. This may undermine the whole project. The whole idea behind expedited jury trials is that the parties give up some rights associated with full trials in return for speedy access to the trial process. In the California system, one of the rights waived is that of appealing a verdict or moving for a new trial to correct an error of law. So, what incentive remains to opt for an expedited trial? How much speedier will the resolution be, if the parties can drag out the appeals process in an expedited trial as they can in a regular trial?

Still, for those of us interested in civil litigation, this bill offers at least some hope that the logjam in the courthouse can be broken. Tim Dunn, the senior partner at Dunn & Dunn, is rightfully proud of the fact that he has tried 180 civil jury trials in his career. I will not come anywhere near that number in my career, both because I started my legal career later in life, and because most suits are resolved long before trial. H.B. 349 could become a useful tool for civil litigators and their clients. Time will tell if we will let it.

(Hat tip to Brian King and the Utah Association for Justice for the details of this act. Photo by Chris Martin.)


About W. Lewis Black

W. Lewis Black is an associate attorney at Dunn & Dunn, P.C., located in Salt Lake City, Utah. His practice focuses on personal injury, employment law, workers compensation, and Social Security Disability claims. He is a past member of the Ensemble at Pinnacle Acting Company in Midvale, Utah. He can be contacted at wlblack@dunndunn.com.
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  1. Pingback: Utah Legislature Watch: tortious Act Arbitration (S.B. 52) | Black's Blawg

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