“We’ll Let a Judge Decide!”  Maybe.

I retired from the active practice of law in August 2022. We are marking the fifth anniversary of the COVID Emergency shutdown of courts in 2020. In Pennsylvania, that shutdown began March 19. In early June the Supreme Court directed courts to re-open. So, the actual time of closure was, technically 73 days.

But as Attorney Michael Lyon has noted in a recent article for a magazine called Sidebar, the 2020 closure is but a fraction of the real story. For those of us who spent most of our careers as frequent fliers in Pennsylvania courthouses, the runways never fully re-opened. Many counties in Pennsylvania were slow to resume regular court schedules. In retrospect, this was understandable. Johns Hopkins Covid Resource center illustrates that in April 2020 the US went from a few deaths to 2,000 a week. The apex was January 2021 when we reached 3,300 deaths a week. As for the illness itself, in January 2021 the country had 250,000 cases a week. Exactly one year later it spiked again with 2,000 weekly deaths and a stunning 800,000 cases per week. Courts were right to have been cautious.

Today, in much of Pennsylvania support intake conferences are done on-line. Lots of pre-trial conferences have also been converted to telephone or video conference. I began to notice that courthouse halls that were once bustling with activity had become eerily silent. In tracking divorce, custody and support data maintained by the state judicial system, 2020 was an aberration. It appeared that filings rebounded by 2021 and continue today. But domestic filings are tough to evaluate because they come in so many different forms and are managed in diverse ways.

My colleague Mr. Lyon is a civil litigator. They don’t “touch” the judicial system as frequently as the family lawyers. Civil actions are filed and answered. Then there is a period of pre-trial discovery to learn the facts from each side. Courts get involved only if there are disputes over that pre-trial procedure. Then, some counties automatically move cases toward actual trials while others insist that the parties inform the court when the case is ready. Once a case is “trial ready” there is often a settlement conference to thrash out whether the case needs to be tried or can be settled or to try to narrow issues. But then it is time to put the big pants on and actually start calling your first witnesses.

What Mr. Lyon found from his foray into Pennsylvania case statistics was that before any signs of COVID in 2018 the state reported 749 jury trials. We should be cautious here because in lots of commercial and other business disputes, juries aren’t really that useful and they are labor intense for courts to manage. So, lots of jury trials are dispensed with because the warring parties don’t need or want 6-12 strangers trying to learn about the dispute when you can teach the same lessons to a single judge and get a faster result. But in 2023 there were 545 civil cases tried in all of Pennsylvania. That a 27% drop in the number of jury trials over five years.

Testing whether this was an aberration Lyon then looked at criminal jury trials. There he found a 10%  reduction during the same period.

Perhaps most shocking to the public is how infrequently the jury system is used today. In the civil world jury trials are 1/3 of 1% of all cases processed (0.036%). In the criminal world the number of jury cases is reported by Lyons as 1%.

In a word, in all of 2023,  450 commissioned trial judges conducted 2,100 jury trials. That’s an average of 4.6 trials per judge per year or one jury trial every 2.5 months. Lyons point in his article is that it’s getting challenging to learn how to try cases when the state has just under 50,000 licensed attorneys and 2,100 jury trials.

To those who might take issue with this narrative and contend it is misleading, I concede the weaknesses. But what I have found is that Pennsylvania courtrooms now abound with proceedings where both the trial bench and the trial bar are often unfamiliar with trial procedures and evidentiary rules. This is not a case where there has been a decline in court filings seeking a trial of some kind. And one can look at the less than 1% numbers and suggest that this demonstrates just how many cases settle. It should also be mentioned that non jury proceedings can involve extremely important issues and huge dollar amounts. Delaware’s chancery court just decided Elon Musk is not entitled to $56 billion in pay and they needed no jury to assist.

In family law it’s fairly common to have the client say: “I want a judge to decide this” or “We need a jury.” Sorry folks, most family law cases today are being assigned to hearing officers. Many of them are as qualified as judges although you can ask that judges review the case decision based on the hearing officer’s record and recommendation.

But there are other problems as well. The biggest issue that the judicial system is becoming trial averse. I have had many colleagues complaining that they can’t get to trial because judges keep scheduling conferences to see if trial can be avoided. Trials that do occur today have become immensely cumbersome. Computers harvest and store trillions of communications each day across America. A request for documents in preparation for a civil trial can yield tens of thousands of documents; many of which today are sifted for relevance using artificial intelligence. But a human needs to decide what is the wheat that is presented in a courtroom and what chaff can be left on the law office floor. Trials that once typically lasted a few days can now stretch out for months. In many instances that’s because lawyers tend to overtry cases.

We have the confluence of vastly more complex trials and trial lawyers and judges with less and less trial experience. In the family law area this is complicated by the proliferation of clients who think they can go it alone in a courtroom. Those folks don’t grasp the procedure or the evidence. They think it’s the court’s job to find justice. It’s actually the court’s job to do justice based on the competent evidence provided under the rules of evidence. And when judges step onto the bench and look out at 50 people wanting their matter disposed of on any bright sunny day, their focus tends to be on managing the caseload as much as the Torah’s prescription to “pursue justice.”

Our system of trials is an admirable one. But we need to figure out how to get just results in more efficient ways. A trial over whether Junior should attend public, private or parochial school should not consume four days and $25,000 in legal fees. Lots of judicial time is wasted over troubles that are self-inflicted or for which much of the evidence is self-evident. The precipitous decline in the number of jury trials signals that we are not using our justice system efficiently. And that’s a problem which requires serious thinking and input from both sides of the judicial bench.