The Demise of the Civil Jury Trial, Part II: Judicial Tinkering

• Author: Hon. Mark A. Drummond
• Pages: 30-31

Published in Litigation News Volume 45, Number 3, Winte r 2020. © 2020 by the Ame rican Bar Associati on. Reproduced with p ermission. All rights r eserved. This in formation or any por tion thereof may no t be copied or disseminate d in any

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30 | SECTION OF LITIGATIO N

PRACTICE POINTS

By Hon. Mark A . Drummond (Ret.), Litigatio n News Associate Editor

In my last column, I wrot e about a medical malprac-

tice case involving t he death of a little boy. The jury

returned a verdic t of $10 million in favor of the par-

ents and his two sibli ngs. The appellate majority of

three, af ter ordering the parties to brief set tlement

negotiations and after “substantial collegial discussion,”

decided to reduce the award to $3 m illion. The parent s were

also given the option of a new t rial.

The majority opinion re ferenced Averroes’ Commentaries

on Aristotle, the spire atop the Great Cathedral i n Salisbury,

England, Ha mlet, and a footnote to Scientic Americ an

magazine. Two justices dis sented. This column addresses

those dissents.

Let’s begin wit h the spire. The majority noted that the

spire is “exactly 3.2 fe et off dead center in the d irection

of the southwest prevaili ng winds.” This adjustment has

allowed the spire to sur vive for hundreds of years. The

majority then wrote , “Greatness in a rchitecture is not

The Demise of the Civil Jury Trial,

Part II: Judicial Tinkering

achieved by creating a goo d structure from superb material s;

it is achieved by creating a sup erb structure from mediocre

materials.”

The majority applied th is analogy to the “imperfect”

judicial system, r eferencing the “unbrid led discretion” of a

jury on one end of the sca le versus plaintiffs having to put

up with “outrageous expens e, incalculable inconvenience,

and inordinate delay.” What is most cur ious about the last

part of this ba lancing is that the majority also st ated that,

without years of pretr ial motions and discovery, “. . . defense

law rms can not build a le to justi fy fees, and large fees are

necessary to s ustain the overhead of lar ge rms.”

The majority then st ated, “Without the occasional jur y

award that is at least ten ti mes greater than what the partie s

would have settled for im mediately after the tragedy, there

would be no incentive on the pa rt of clients to temper the le

building, ant i-settlement proclivities of thei r lawyers by urg-

ing quick payment of just clai ms.”

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