Lawsuits Increasing, but Fewer Going to Trial

By Mark Reiter
The Toledo Blade [Toledo OH]
September 7, 2004

William Claar wanted others to know about the sexual abuse that a Roman Catholic priest allegedly inflicted upon him as a teenager while growing up in Fremont.

In filing a civil lawsuit against the Toledo Catholic Diocese and the priest in 2002, Mr. Claar, 45, envisioned taking the witness stand and telling a jury he was molested repeatedly in the rectory of his parish.

Mr. Claar waited for his day in court, but it never came. He and others who filed suit in Lucas County Common Pleas Court alleging sexual abuse by clergy reached out-of-court settlements over the last several months with the diocese.

The settlements, which were all reached under the direction of a mediator, were part of an emerging trend: Although more people are filing lawsuits in local courts, fewer and fewer of the cases are being decided by juries.

The number of civil complaints filed in Lucas County Common Pleas Court has steadily increased since 1997. Last year, 5,763 new cases were filed, a 10 percent increase over 1997. But over the same period, the number of jury trials fell from 81 to 49, a drop of nearly 40 percent.

"There is no dispute that jury trials are in decline," said G. Thomas Munsterman, director of the Center for Jury Studies at the National Center for State Courts in Williamsburg, Va.

Catherine Hoolahan, an attorney representing a dozen clients who filed lawsuits against the Toledo diocese, said her clients were anxious for the opportunity to have their day in court. She said it was a mechanism to right a wrong they believed was done to them.

"The clients were happy to put an end to it and get on with other aspects of their healing. Are they glad they settled? I don't know. But they would have liked the chance to tell their stories in a public forum. In some cases, they have been stonewalled for decades, and [testifying before a jury] is something they would have liked to have done," Ms. Hoolahan said.

The trend of more lawsuits but fewer trials is occurring in other courts as well, and one study completed by a law professor indicated the phenomenon started four decades ago.

A study released last year found that 1.8 percent of the civil lawsuits in the federal court system went to trial in 2002, compared to 1962 when 11.5 percent of the cases went to trial.

Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics, prepared the analysis for the American Bar Association.

Even though the country's population has risen by more than 100 million since 1960, Mr. Galanter found that there were actually fewer trials in 2002 than 40 years earlier. He reported there were 5,802 in 1962, compared to 4,569 in 2002.

A review of civil cases and jury trials showed a similar pattern for the U.S. District Court of Northern Ohio, based in Toledo.

Civil lawsuits filed in district court increased 19.7 percent last year when 4,256 cases were filed, and since 1991, lawsuits have increased 25.7 percent.

However, the number of trials in the district's four federal courthouses, which cover 40 counties, have decreased 40 percent since 1991, when there were 100 trials. Only 60 trials were held in the district in 2003.

Mr. Munsterman said the dwindling number of jury trials could affect the skills of lawyers in arguing cases.

"If they don't have the opportunity to try a case at trial, then are they going to lose these skills," he said.

Mr. Munsterman noted the decline was occurring at a time when jurors were reacting positively to the trial experience. "The educational value to citizens of being on a jury has been very positive. I hate to see that diminish," he said.

In his study, Mr. Galanter attributed the decline in trials to a combination of factors, including the high cost of litigation. Specialized lawyers and expert witnesses often demand thousands of dollars to review documents, participate in depositions, and testify at trial.

Also, the law professor believes there has been a change in the attitude of judges. Many now see their role as settling disputes by themselves - without turning the case over to a jury.

But local judges, including Common Pleas Judge James Jensen, do not count themselves among those who push for pre-trial settlements. He said the parties, if they are willing to accept the costs of the litigation, should get their day in court.

"Trial is one way of resolving an issue, but it can be time-consuming, expensive, and unsatisfying to one of the litigants," Judge Jensen said.

A possible reason for the decline in trials in Lucas County could be attributed to the court's mediation program. Of 240 cases taken to mediation last year, 79 percent were settled. In 2000, the program's first year, just 63 percent of the 183 cases referred to the mediator were settled.

The mediation program allows for parties to reach a settlement under the direction of the common pleas court mediator, freeing judges to devote time to other matters.

Harland Britz, a Toledo lawyer who has practiced for 48 years in state and federal courts, said judges often help identify the strengths and weaknesses of cases, and that can result in settlements.

"I think they dismiss cases because judges think it is in the best interest of everyone," Mr. Britz said. "I don't know any judges who push parties to settle their cases."

Often, both parties in a case ask for "summary judgment," a request that a judge rule that the facts overwhelmingly favor their position and that a trial is unnecessary.

U.S. District Judge James Carr said some cases are decided with a summary judgment, but the court's time is still consumed on issues relating to cases.

"We are spending an increasing amount of time on researching, writing opinions, and deciding motions," Judge Carr said. "The bottom line is that our job as judges is to see it that if the parties want to go to trial then they are entitled to have a trial," Judge Carr said.

Phillip Closius, dean of the University of Toledo College of Law, said adjustments have been made in the curriculum at the college to reflect changes in the court system.

While the college still emphasizes traditional trial practice areas, it has introduced classes that educate students on alternative dispute resolution and pretrial discovery issues.

"We try to keep in contact with our alumni who are active in litigation practice areas so we know what is going on in the legal field. This has been a pretty consistent message that I have been hearing for six years," Mr. Closius said.


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