SC Lawyer, July 2009, #3. South Carolina's Fast Track Jury Trial: An Inventive and Inexpensive Way to Resolve Cases.

• Author: By Professor Steven Croley, E. Paul Gibson and Stephanie A. Nye

South Carolina Lawyer

2009.

SC Lawyer, July 2009, #3.

South Carolina's Fast Track Jury Trial: An Inventive and Inexpensive Way to Resolve Cases

South Carolina LawyerJuly 2009South Carolina's Fast Track Jury Trial: An Inventive and Inexpensive Way to Resolve CasesBy Professor Steven Croley, E. Paul Gibson and Stephanie A. NyeIn June 2009, the S.C. Supreme Court began a fast track jury trial pilot program in Charleston, Berkeley and Dorchester counties. A fast track jury trial is a consensual trial before a reduced jury panel of six people with streamlined rules of evidence. Generally, a fast track jury trial is identical to a regular common pleas jury trial except there are variations in the process to promote efficiency. The beauty of the fast track jury trial is in its flexibility-the process is governed entirely by the agreement of the parties. The fast track jury trial process has many advantages beyond its efficiency. One notable advantage is that it provides a class of litigants with access to the civil litigation system while avoiding the common criticisms of traditional litigation-high costs, unpredictable damage awards and evidentiary biases.

Origination of the fast track jury trial

In the 1980s, a few federal and state courts experimented with a procedure called the "summary jury trial." This innovative process never took wide root, although it had several promising features.

The summary jury process was designed to be both quick and inexpensive. First, as the term suggests, summary jury trials were short. Indeed, in some jurisdictions litigants had to try their cases in just an hour, which allowed that litigants little more than an opportunity to summarize their cases to the jury. More commonly, however, summary jury trials lasted up to one full trial day. Second, many of the rules of evidence were relaxed. For example, lawyers could read deposition testimony to the jury for almost any purpose, not just for impeachment purposes. Lawyers could also simply summarize or characterize deposition testimony to the jury, without reading it verbatim. In addition, the rules of hearsay were relaxed. For example, medical hearsay was often permitted, allowing parties to explain the contents of medical records or what a doctor said on a particular issue to the jury. This process saved time and money because attorneys did not have to establish foundations, authenticate records or call witnesses to demonstrate factual elements of their case. The parties also saved substantial costs because they did not have to pay expert witnesses to appear in court.

Trial judges presided over summary jury trials in a routine manner. However, the juries could be characterized as "mini-juries," sometimes comprised of as few as four jurors. These mini-juries were also merely advisory because the parties were not required to adopt the verdict. The summary jury trial was essentially another form of alternative dispute resolution, even though the process was often involuntary, particularly in the federal courts.

Advocates of the early summary jury trial championed the process on two grounds. First, summary jury trials helped with docket control. During a period when many argued that civil dockets were overburdened, resolving cases through summary jury trials was seen as a significant advantage. Second, the process was said to promote settlement, giving opposing litigants the benefit not only of presenting and testing their cases in front of a live jury, but also of hearing the other side's case. In the end, both sides would have reason to reassess the strengths of their case and make more informed settlement calculations.

Unfortunately, summary jury trials did not vindicate their proponents' hopes. During the last decade and a half, use of the process seriously declined. However, in Charleston, Dorchester and Berkeley counties, a version of the summary jury trial is not only alive, but well.

Charleston model: fast track jury trials

Working together, Charleston's plaintiff and defense bars have developed a version of the summary jury trial that not only resolves cases quickly and inexpensively, but also provides a class of litigants with access to the civil litigation system. Charleston's reincarnation of the summary jury trial-called the "fast track jury trial"-has been used successfully by attorneys in Charleston, Berkeley and Dorchester counties for more than five years. In fact, in Charleston County, about half of all civil trials are now fast track jury trials. The level of support for the process among both local plaintiffs' attorneys and defense attorneys is striking.

In 2007, the South Carolina Bar's Task Force on Courts, under then-President Brad Waring's leadership, petitioned the Court to adopt a uniform fast track jury trial procedure and pilot the program throughout the state. In June 2009, the Supreme Court of South Carolina began a fast track jury trial pilot program in Charleston, Berkeley and Dorchester counties. The Court and the South Carolina Bar also created an instructional video, featuring lawyers who pioneered the process, to educate the bar about its promise.

The fast track jury trial process resembles the summary jury trial of the 1980s, but with two crucial exceptions. First, the procedure is entirely voluntary. Unlike the federal judges who first used the summary jury trial process, the South Carolina bench does not compel parties to use the process. Second, for those who use it, the fast track jury trial is binding and final. That is, fast track jury trials are used by parties who agree in writing to make the outcome of their trials fully binding. Typically there is no right to appeal a fast track jury trial verdict, except in cases of fraud.

The beauty of the fast track jury trial process is it is flexible and consensual. Prior to the trial, the parties consent to the procedure, including who will serve as the fast track jury trial special hearing officer or "judge." In Charleston the participants tend to know one another, and a fast track jury trial judge in one case could be an attorney in the next. Not surprisingly, attorneys select fast track jury trial judges in part because of their perceived evenhandedness and trial experience. In the pilot program, attorneys will select a fast track jury trial judge from a list of Bar members approved by the Chief Justice.

The heart of the fast track jury trial process is the high-low agreement. If the plaintiff prevails, the plaintiff receives whatever amount the jury awards, unless that amount is higher than the "high" or lower than the "low." In other words, the parties agree upon a floor and ceiling for damages. This high-low range is not disclosed to the jury or even to the judge at the beginning of the trial and is only disclosed after the jury renders a verdict. The high in a personal injury case is typically the amount of the available coverage. The high can be lower by agreement, but it will never be higher than the insurance coverage, except in extraordinary circumstances. Clearly an attractive element of the fast track jury trial process to plaintiffs' attorneys is that the plaintiff will never leave with nothing. In addition, these plaintiffs are allowed an opportunity to litigate liability and damages in a way that does not cost as much as the plaintiff could expect to recover.

After the fast track jury trial judge is selected and the attorneys have agreed upon a high-low, the attorneys schedule a pretrial conference, typically 10 days prior to the trial, where the judge can rule on evidentiary motions and the parties can exchange trial exhibits. The pretrial process provides the attorneys an opportunity to simplify the trial process by working out "hot button" issues before the trial. As a result, objections in a fast track jury trial are fairly rare.

The fast track jury trial in most ways follows the choreography of a typical common pleas trial. The fast track jury trial judge begins with an opening charge, which explains to the jurors that they are participating in a different trial process chosen by the parties. The judge's charge explains that there are procedural differences between fast track jury trials and other trials, such as the number of jurors, but these procedural differences do not change the basic process or purpose of a trial. Such detailed explanation assuages any concerns about misleading the jurors about the civil trial process.

The attorneys may consent to streamline the rules of evidence, but not to completely abrogate those rules. Attorneys often consent to unique evidence presentation in order to save time and money. For example, the parties may agree to present evidence by affidavit, video and PowerPoint presentations. The parties may also use an ex parte deposition or ex parte video statement, which is a video interview of an expert where the attendance of the opposing party's attorney is optional. The ex parte video statement is a sworn statement that is not usually accompanied by a transcript. These videos are generally short, so the party avoids the usual expense and other burdens associated with taking traditional depositions.

Appropriate cases for the fast track jury trial process

The paradigm fast track jury trial case is a simple torts case involving an automobile accident or a slip and fall in which a plaintiff allegedly experienced significant but not life-altering injuries as a result of the defendant's conduct. To the plaintiff, those harms are real and substantial, as they typically include lost wages, medical bills, and pain and suffering, but the damages are not astronomical. Cases that are best suited to the fast track jury trial setting are cases where liability has been conceded, much of the evidence can be admitted without objection, and the primary issue in the case is the amount of damages.

While many fast track jury trial cases involve automobile accident cases, the process can be used in other areas such as wrongful death cases involving first party coverage. A fast track jury trial solely involving the issue of liability works very well in that circumstance. However, attorneys should not just limit themselves to the tort arena. The fast track jury trial system is an excellent vehicle for a wide variety of cases.

Fast track jury trial advantages

One obvious advantage of the fast track jury trial is that the process moves jury trials in a more efficient and cost-effective manner while still preserving the core value of having a jury trial by your peers. Fast track jury trials are advantageous to the litigant and the judiciary because they relieve congested trial dockets and allow trial judges to concentrate their efforts on more complex cases. Additionally, the process is advantageous to jurors because it allows them to undertake their civic duty in a compressed time frame.

Most importantly, fast track jury trials are inexpensive, which is the primary reason why parties use them. For participating attorneys, the major cost savings of fast track jury trials is time. Because fast track jury trials are scheduled on a date certain and are never adjourned by the court, the time expended on fast track jury trials is very small relative to that of ordinary trials. In addition, trial preparation costs are lower. Attorneys do not need to spend time on the many facets of witness preparation given that they can provide summary testimony without witnesses. Avoiding laborious witness preparation that may involve reviewing documents, going over testimony and conducting mock examinations constitutes a significant savings.

Critics of traditional litigation (and of tort litigation in particular) commonly claim that tort damages are often too high, and in any event too uncertain. The prospect of excessive damages, in their view, both inspires too much litigation by plaintiffs and punishes defendants. Neither can be said about fast track jury trials. As explained, damages are capped by the high-low agreement parties establish in advance. Thus, damages are not very high, and never unexpectedly high. Nor is there much uncertainty about damages; the sole function of the jury in a fast track jury trial case is to determine liability and assess damages somewhere within a range chosen by the parties.

Fast track jury trials compel attorneys to seriously evaluate their case and its weaknesses early in the process. Defendants are not faced with the choice between high litigation costs and quick settlement. Defendants can offer a fast track jury trial as a counter to suspected weak claims. Plaintiffs' attorneys would think twice about litigating a weak case in a fast track jury trial where they are unlikely to prevail. However, plaintiffs' attorneys would likely agree that the fast track jury trial process is a more equitable way to resolve close cases.

Finally, litigation reformers commonly argue that the rules of evidence and other institutional biases work in plaintiffs' favor and thus also encourage excessive litigation and impose unjustifiable liability on defendants. Here again, none of this can be said of fast track trials. As explained, the rules of evidence are streamlined, and equally so for both parties, and moreover evidentiary rules are agreed to by both parties. Thus, there is nothing about the procedure itself that works to favor one side or the other. For a number of reasons, the fast track jury trial promises benefits to litigants with no hidden risks or offsetting costs.

Conclusion

South Carolina has developed an inventive process that other jurisdictions are emulating. Recently, courts in California, Colorado and New York have taken a keen interest in South Carolina's fast track jury trial process. In fact, plaintiff and defense lawyers in California are working with that state's high court on a project to develop a fast track jury trial program. Meanwhile, the American Board of Trial Advocates is also considering greater use of the fast track jury trial. The fast track jury trial process will likely gain more national attention in the current economy because it is an inexpensive way to deliver civil justice while using minimal court resources.

Steven Croley is a Professor of Law at the University of Michigan Law School. E. Paul Gibson is an attorney at the Riesen Law Firm in North Charleston. Stephanie A. Nye is Counsel to the Honorable Jean Hoefer Toal.

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For more information about the fast track jury trial process, e-mail fasttrack@scbar.org.