Is Fewer Trials a Problem? – A Divorce Mediator's Reply to David Beck

Yesterday, Lawyerist published an article by David Beck titled, "A Civil Justice System With No Trials," in which Beck laments "the steady erosion of [the] precious right" to a jury trial. Starting from statistics showing a decrease in jury trials in the federal and state court systems, Beck concludes that "our judicial system is being reshaped,” in his estimation for the worse. To the contrary, Beck's conclusion does not follow from the facts. A decrease in trials does not threaten the judicial system; nor does it threaten the public's access to justice more generally.

Many disputes (e.g. divorce) are not community concerns.

Beck goes to great lengths to extoll the virtues of the jury system, among them the fact that "a jury’s decision reflects community values in the resolution of issues." Setting aside the question of whether a bench trial – one decided by a judge rather than a jury, which includes all family law trials in Massachusetts – can satisfy that same purpose, we must ask ourselves whether "community values" are the appropriate standard for all legal disputes.

In a contract dispute, for example, the contract sets forth the promises the parties made to each other, which might be very different from the promises that the members of a jury would make. Yet the contract is presumptively enforceable as private law. Would it not be better, then, if the parties themselves were also the primary arbiters of any dispute arising under the contract? In other words, would it not be better to increase access to mechanisms that facilitate private resolution of private disputes under private law? If private resolution is not possible, the parties can then turn to the community for assistance through a trial (and possibly appeal) – but that does not mean the community should have the first word.

Similarly, in family law, there is a tremendous body of Constitutional precedent protecting individuals' rights to private family lives independent of state or community intervention. Those rights include, for example, the freedom to choose one's spouse, the freedom to direct the upbringing and education of one's children, and the freedom to arrange the family's finances to suit its own needs and preferences. There are limits, of course, that do implicate community concerns, but within those limits, the vast majority of family issues are fundamentally private and protected from outside interference. So, why should we assume that a judge or jury is the appropriate entity to resolve family disputes? Again, would it not be better to increase access to mechanisms that facilitate families' private resolutions of their private concerns?

Accessible dispute resolution (e.g. divorce mediation) does not require trials.

Still on the topic of the virtues of the jury system, Beck points to the jury system as "an important forum for parties who have little or no access to private dispute resolution." Granted that many individuals – particularly the poor and minorities, as Beck notes – lack access to alternative dispute mechanisms. But that does not make the trial system an adequate substitute, much less a desirable first stop for dispute resolution. Rather, our focus should be on ensuring that all potential litigants have access to the same types of dispute resolution mechanisms. If the wealthy are primarily resolving their disputes through private negotiation – for example, deciding the terms of their divorces through divorce mediation or collaborative law – does that not validate our courts' efforts to provide greater access to concilation and mediation services? Simply put, the need for more accessible dispute resolution mechanisms is not equivalent to a need for more trials.

The common law is not a high volume business.

Another of Beck's central concerns is the prospect of losing common law precedent, which relies on appeals from trial judgments. He cites Texas Supreme Court Chief Justice Nathan Hecht for the proposition that, "[i]t’s a detriment if we lose the development of the common law through cases and appeals that have been the [basis of the] rule of law in this country since its founding." While I agree that the loss of common law would be a tremendous detriment to our judicial system, a reduction in trials does not mean a loss of common law precedent.

In fact, the vast majority of cases do not require a trial precisely because they neither raise novel legal questions nor call into question unjust or ambiguous laws. Cases that do present significant legal issues may still be litigated and appealed, but they are not in the majority. The judicial system can withstand a significant reduction in trials and appeals without eroding the development of common law one iota.

Consider Massachusetts, where a significant number of appellate decisions are Rule 1:28 decisions, meaning one of two things: either "no substantial question of law is presented by the appeal or ... some clear error of law has been committed which has injuriously affected the substantial rights of an appellant." The former situation means that the panel finds no basis for appeal. The latter situation means that the judge or jury clearly applied the law incorrectly, such that the trial produced an invalid and harmful result.  A quick glance in WestLaw shows that the last ten appellate decisions in Massachusetts were all unpublished dispositions under Rule 1:28, and seven of those affirmed the lower court's judgment or decree.  I would expect similar statistics to hold up in a larger sample of cases, with the logical inference that the vast majority of Massachusetts appeals have no bearing whatsoever on the development of common law.

One can have a right (e.g. the right to a divorce trial) without exercising it.

Finally, perhaps the most probematic aspect of Beck's article is the suggestion that a right is being eroded simply because fewer people choose to exercise it. In fact, disputes are often resolved privately with an explicit understanding that the alternative would be a trial. For example, couples participating in divorce mediation generally are fully aware that a judge could decide the terms of their divorce. Dispute resolution professionals – mediators and attorneys alike – routinely refer to parties' "best alternative to a negotiated agreement" (BATNA) or "best alternative to a mediated agreement" (BATMA). As Harvard Law School Professor Robert Mnookin famously said, we are "bargaining in the shadow of the law." It would therefore be a grave mistake to assume that a decision not to exercise a right means that the right itself is being "eroded." The right remains intact, and will remain so intact, absent a truly disruptive (and exceedingly unlikely) change in Constitutional law.

Meanwhile, there is no reason to lament a decrease in trials – to the contrary, a decrease in trials merely reflects a growing awareness that most cases do not require a trial, and a laudable increase in access to mediationcollaborative law, and other alternative forms of dispute resolution.