A summary jury trial pilot has landed in Michigan

Richard L. Hurford

On September 23, 2013, the Supreme Court Administrative Office convened an Early ADR Summit that was attended by well-respected litigators, judges and neutrals across the state.  During that summit, which culminated in a number of recommendations for counsel and the judiciary to increase efficiency and a reduction in  litigation costs (see http://courts.mi.gov/Administration/SCAO/Resources/ Documents/standard/odr/ADR%20Summit%20Report%20September%204,%202013.pdf), there was a discussion of the use of a summary jury trials as a potential ADR technique.  Justice Bridget Mary McCormack, one of the attendees at the Early ADR Summit, suggested that a task force of litigators, judges and neutrals evaluate the wisdom of implementing such a process in Michigan.  This Summary Jury Trial Task Force, chaired by Thomas W. Waun, evaluated the available literature and the efficacy of summary jury trials in a number of jurisdictions throughout the country.  After evaluating the matter over the course of a year, the Task Force universally endorsed the concept and submitted its proposed recommendation to implement a summary jury trial process on a pilot basis for a period of two years.  At the conclusion of two years, the Committee would review the results of the pilot project and recommend potential changes and implementation on a state wide basis.  As a result, on March 25, 2015, the Michigan Supreme Court approved an Administrative Order authorizing the implementation of a Summary Jury Trial process that provides litigants with yet another option to consider for the efficient, cost effective and fair resolution of disputes. (See  http://courts.mi.gov/Courts/MichiganSupremeCourt/ rules/court-rules-admin-atters/Court%20Rules/ 2014-24_2015-03-25_formatted%20order_AO%202015-1_Summary%20Jury%20Trial.pdf.)

A number of courts outside Michigan have successfully employed binding “summary jury trials” as a form of alternative dispute resolution when the amount in controversy is not sufficiently large to justify the cost and expense of a full, traditional trial and the parties desire a binding decision from a jury rather than an arbitrator.  (See Short, Summary & Expedited, The Evolution of Civil Jury Trials, National Center for State Courts, www.ncsc.org.)  Perhaps the best known, long-standing example of this particular dispute resolution mechanism is that provided in the Charleston, South Carolina County Courts.  (See Steven Croley, Summary Jury Trials in Charleston County, South Carolina, 41 Loyola of Los Angeles Law Rev. 1585 (Summer 2008).)  This process involves the voluntary agreement of both parties who select a mutually selected hearing officer who will preside over a summary jury trial.  The jury’s decision is binding upon the parties.  Prior to the date set for the summary jury trial, the parties meet with the hearing officer and agree upon the ground rules, the jury instructions to be given, and the verdict form.  It is the responsibility of the hearing officer to ensure the agreed upon ground rules will be followed and to make any evidentiary rulings that were not resolved or anticipated at the pre-trial conference.  On the day scheduled for the trial, the parties appear at a court room in the Charleston court, empanel a jury drawn from the court’s standard jury pool, and complete the trial in one day.  The jury consists of no more than 6 individuals and each side is limited to two peremptory challenges.  The voir dire is limited and usually conducted by the hearing officer.

In Michigan, counsel may have some familiarity with summary jury trials that have been utilized as a settlement device in the Federal District Court for the Western and Eastern Districts of Michigan.  The Western District practice is governed by a specific local rule:

16.7 Summary jury trials; summary bench trials

(a) Summary jury trial - The summary jury trial is an abbreviated proceeding during which the parties’ attorneys summarize their case before a six-person jury.
Unless the parties stipulate otherwise, the verdict is advisory only.

(See also, LR 16.7 Federal District Court for the Eastern District of Michigan (specifically identifies the summary jury trial as an approved ADR process).) 

Unlike the practice in South Carolina and other jurisdictions and the pilot project in Michigan, however, the summary jury trial’s decisions in the Western and Eastern Districts of Michigan are advisory only unless the parties otherwise stipulate. 

The essential features of the pilot summary jury trial process approved by the Michigan Supreme Court include: 

a. It will be piloted in Macomb County Circuit Court and other jurisdictions yet to be determined;

b. Each pilot court will establish guidelines for eligible cases;

c. The process is voluntary and the parties are called upon to stipulate to the summary jury trial – parties who so stipulate are bound to use the process unless the case is settled;

d. The parties mutually select the hearing officer who will preside over the summary jury trial and the trial court is prohibited from appointing, recommending, directing or otherwise influencing a party’s or attorney’s selection of the hearing officer;

e. The hearing officer will meet with the parties to tailor the procedures for the summary jury trial with reference to the general guidelines set forth in the administrative order;

f. It is anticipated the summary jury trials will be completed in one day;

g. The hearing officer ensures the procedures are followed as agreed to by the parties, makes any necessary evidentiary rulings, and instructs the jury;

h. The summary jury is selected from the standard jury pool in the circuit and the summary jury trial will be conducted in a courtroom at the county courthouse;

i. A jury of 6 will be empaneled by the following procedure:  10 prospective jurors will be seated and each party will have the opportunity to exercise 2 peremptory challenges; there are no challenges for cause;

j. If the parties enter into a high-low agreement, that fact will not be communicated to the summary jury; and,

k. The verdict is binding and there are extremely limited bases for appealing the summary jury’s decision.

While not necessarily appropriate for complex legal and factual disputes, the process has proven very effective in the Charleston experience for disputes of less than $150,000.00.  The process is often coupled with the parties agreeing to a high-low arrangement.  For example, if the plaintiff and defendant agree to a high-low of $100,000.00 - $20,000.00, even if the summary jury no causes the plaintiff, the plaintiff will still receive the agreed upon low of $20,000.00.  In this example, if the summary jury enters an award of $150,000.00, the plaintiff’s recovery is capped at the agreed upon high of $100,000.00.  If the jury’s verdict is between the agreed upon high-low, then the plaintiff’s recovery is in the amount of the verdict.  As indicated previously, the summary jury is not advised of any high-low agreement prior to its deliberations under the terms of the Administrative Order approved by the Michigan Supreme Court.  

Although a summary jury trial can be a stand-alone ADR technique, it may also be incorporated into multi-staged ADR agreements very similar to the med-arb hybrid process that has gained in recent popularity.   If the parties stipulate to use the summary jury trial process, the trial court cannot order the parties to engage in other forms of ADR such as mediation or case evaluation.  However, the parties could voluntarily agree to engage in mediation and might select a mediator who will act as the hearing officer should the mediation not resolve the entire case.  Following the mediation, the mediator will become the hearing officer to preside over the summary jury trial (unless the parties desire a different hearing officer than the agreed upon mediator) to decide those issues that were not resolved at the
mediation.  Similarly, if the parties agree to a high-low arrangement, then, just like in the med-arb high-low hybrid, the parties will be bound by that agreement. 
Utilizing the summary jury trial as the penultimate dispute resolution step following an unsuccessful mediation avoids many of the various concerns that some parties and neutrals may have with the hybrid med-arb process when the mediator becomes the arbitrator.  (See, e.g., Brian A. Pappas, Med-Arb: The Best of Both Worlds May Be Too Good to Be True, 3 Dispute Resolution Magazine Vol. 9 (Spring 2013); Barry C. Bartel, Med-Arb as a Distinct Method of Dispute Resolution:  History, Analysis and Potential, 27 Willamette L. Rev. 661 (1991).)  The use of a summary jury trial may also appeal to parties who want to avoid the costs of a traditional jury trial but are more comfortable with a jury making the binding determination rather than a single arbitrator or an arbitration panel.  As observed by the National Center for State Courts in its study, Short, Summary & Expedited, supra:

“Several of the programs examined in this study were initiated in response to broad dissatisfaction by both the plaintiff and defense bars with the fairness of mandatory arbitration decisions.”

The Vanishing Jury Trial has become a concern to many commentators and the bane of associates and less experienced attorneys who are hard pressed to gain any jury trial experience.  After all, in Michigan less than 1.4% of cases in 2014 were disposed of by a jury trial.   As a result the summary jury trial process has been embraced by many practitioners and organizations in providing their clients another option to consider.  In fact, the American Board of Trial Attorneys (ABOTA) passed a resolution in January 2012 that embraces the implementation of summary jury trials as a viable dispute resolution technique:

“It is therefore, RESOLVED, that ABOTA supports the concept of streamlined procedures and expedited jury trials and that ABOTA, through its leaders and members, should support existing expedited jury trial programs and encourage the adoption of similar programs throughout all jurisdictions.”

Macomb County is prepared to pilot the program immediately and believes it will soon become a very beneficial dispute resolution tool in the appropriate cases.  It is anticipated that other circuits will join the pilot program and the Summary Jury Trial Committee looks forward to collecting the data necessary to permit a determination if the process requires any modifications and will be made generally available throughout the state at the conclusion of the two-year trial program. 

————————

Richard L. Hurford is the vice chair of the Summary Jury Trial Task Force, president of Richard Hurford Dispute Resolution Services PC, a member of Professional Resolution Experts of Michigan (PREMi, http://premiadr.com/), chair of the Macomb County ADR Committee, chair of the Oakland County ADR Committee, and president of the Michigan Chapter of the Association for Conflict Resolution.  He is also the co-author of “A Taxonomy of ADR:  A Guide to ADR Practices & Processes for Counsel” that can be accessed at http://hurfordresolution.com.