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state civil trials disappearing chartIf you’ve been seriously injured by another’s careless actions or have lost a loved one due to another’s negligence, you need an attorney with strong trial experience and a proven track record in front of juries and judges. Unfortunately, finding a trial lawyer is getting harder because civil trials in Minnesota and across the country are disappearing.

Fewer cases than ever make it to trial, most claims being settled during a period of negotiations between attorneys. As a result, young lawyers don’t get much, if any, civil trial experience.

As attorneys, we’ve watched the number of personal injury trials decline over the years. Just how few civil trials take place in current times was made dramatically clear at a recent event open to all southeast Minnesota lawyers, which we attended. The presenter, a member of the Minnesota State Supreme Court, asked how many attendees had tried a civil case before a judge or jury in the past year. Of the many lawyers in the room, only a few of us could raise our hands to indicate that we had.

The shrinking number of lawyers who are well acquainted with seeing a case through to a verdict is a big problem for plaintiffs. In today’s pro-settlement environment, so few cases go to trial that lawyers don’t get to practice the skills vital to trying a case in court. One result may be that they don’t feel comfortable suing large corporate defendants who are more likely to choose to let a case go into suit and trial rather than compensate their victim, because they know the plaintiff’s lawyer is likely to fold and take a less-than-optimum settlement. Plaintiffs can end up struggling to find someone willing to accept their case or else may end up with someone whose plan from the outset is to reach a quick settlement, regardless of whether it represents a best financial outcome for the injured party.

A victim represented by an experienced trial lawyer who is a strong negotiator can expect a settlement that is more in the optimum range, a result that is less likely for someone represented by a lawyer who occasionally (or never) goes to trial.  Insurance companies representing defendants against claims by those injured in a car accident, survivors who’ve lost a loved one in a wrongful death, or other personal injury victims are well aware of the trend away from trials. They know which lawyers have little litigation experience and which have a reputation for taking cases to trial and a history of success in court. What insurers know about plaintiff’s lawyers’ trial history plays a huge role in settlement discussions: Insurance companies dealing with a lawyer who is fully prepared to take a case to trial are dealing from a weaker bargaining position than when negotiating with a trial novice.

There are numerous reasons why trials have declined, among them the rising cost of trials, especially during the “discovery” phase when evidence is gathered. Most personal injury attorneys work on a contingency fee basis, so they are paid when their client receives a settlement or an award at the end of a trial. Law firms routinely front the money to pay for depositions, document productions, and the experts needed to build a case. But lawyers are aware that both jury awards and settlement amounts have trended lower,1 so paying more out-of-pocket to take a case to trial can be an obstacle for those law firms that lack the financial resources to take a case to trial and on appeal, if necessary.

Since “tort reform” advocates launched serious efforts in the 1980s to convince the American public that victim’s compensation should be limited, plaintiffs’ lawyers have seen an increasing reluctance on the part of juries to grant significant awards to plaintiffs for non-economic damages such as pain and suffering, loss of companionship of a loved one or loss of function due to permanent impairment. Civil cases such as auto accident injury, wrongful death, product liability, premises liability, and elder neglect are examples of tort claims.

For a number of years, the drop in tort case filings and civil trials has paralleled a drop in fatal and serious injury car crashes, which is significant since auto tort cases make up about two-thirds of the tort caseload. Since 2008, however, the number of such crashes has been rising nationally, even as civil tort trials continue to decline.

In Minnesota, both serious car wrecks and civil trials have declined, but the drop in civil trials has been much steeper than the decline in car crashes. For example, death and serious injuries on Minnesota roads declined almost 35% from 1993 to 2017, but the number of state civil trials in that timeframe plummeted by more than 68%, from 2,533 jury and bench trials in 1993 to a mere 800 in 2017.2 The number of federal civil trials in the District of Minnesota dropped by 40% from 2014 to 2018. This dramatic decline in trials far outpaces any dip in the number of claims filed. All types of personal injury claims filed in Minnesota district courts dropped 14.7% from 2013 to 2017, and actually decreased by 26.6% in the Third Judicial District, which includes Rochester and the counties immediately surrounding Olmsted County.

Behind these numbers are real people who, through little or no fault of their own, suffer life-altering injuries or lose loved ones. It is these people who are at risk of losing their best chance at just compensation for damages when lawyers shy away from trials and insurers who use the threat of trial against inexperienced or rusty litigators who are wary of hostile juries.

If you’ve been injured through another’s negligence, it’s critical that you hire an attorney with the knowledge, experience, and financial resources to take a case to trial against large corporations. Suk Law Firm has focused exclusively on personal injury and wrongful death cases since 1988, and has recovered well over $125 million for our clients. We are ready to assist you.

Besides Rochester, we serve the following major southeast Minnesota cities: Red Wing, Winona, Mankato, Austin, Albert Lea, and Owatonna, and all outlying communities, as well as the cities of Minneapolis, St. Paul, Duluth, and Bloomington. We also serve the Iowa cities of Mason City, Charles City, Osage, Spencer, Garner, Forest City, and Northwood and the Wisconsin cities of La Crosse, Onalaska, Sparta, Viroqua, River Falls, Ellsworth, Whitehall, and Black River Falls.

 

1 Emory Law – Pound Institute Symposium.

2 Minnesota Supreme Court, April 29, 2019.

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