I just completed a three week jury trial in a complicated fiduciary duty/freeze-out case and am left with the inescapable conclusion that it is just too bad there aren’t more jury trials. We all understand the tremendous costs associated with conducting a trial and the understandable aversion that clients, especially business clients, have toward the considerable risk associated with any trial, and perhaps especially a jury trial. But the jury trial is a time-tested vehicle for dispute resolution, and it advances public education, development of the law, and confidence in a transparent judicial system.

There is nothing quite like preparing a case for a jury trial, or any trial for that matter. By the time the case is prepared for trial, the only stones left unturned involve a last look at strategic decisions previously made. Pitching the case to representatives of the community at large who sit on a jury results in a focus that enhances true democratic decision-making as opposed to “elites” huddling in a private office working out the details of a confidential settlement. In a recent case, Judge William Young of the U.S. District Court for the District of Massachusetts waxed poetic:

• Every trial is a public morality play – perhaps a story of greed and avarice or amoral chicanery, all of it played out live upon actual, understandable evidence before twelve public judges largely chosen at random. The result is the fairest, most incorruptible, democratic expression of justice humankind has ever known.”

U. S. v. Aegerion Pharmaceuticals, Inc., No. 17-10288-WGY (Memorandum and Order dated November 20, 2017 on Motion to Accept “C” Plea), at page 21.

There could be little doubt that actual trials enhance the public’s understanding of the law and, perhaps more importantly, demonstrate how real live disputes are resolved. It is obvious that settlements negotiated behind closed doors serve no such purpose. It is perhaps equally obvious that the development of the law is stifled when there are fewer examples of the application of law to real cases from which new law can develop. If the trend against trails continues, and there certainly is no evidence that it will not, it will be interesting to see how the understandable forces minimizing use of the trial will play out over the long run.