Employment Trials Trending Downward

Stephen Danz & Associates Blog Topic: California Employment Trials Trending Downward

Salvador Long (not his real name) was expecting a jury trial right here in Los Angeles County when he consulted with an attorney. What Sal quickly came to realize was that employment law cases are among the least-likely to go to trial anywhere in California. In fact, the number of filed civil cases has gone down since the mid 1930s from 20% to below 1%. This is true of both California State and 9th Circuit federal cases.

As former US Supreme Court Chief Justice William Rehnquist has stated, “The founders of our nation considered the right to trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard to precious to be left to the whim of the sovereign…juries represent the layman’s common sense and thus keep administration of law in accord with the wishes and feelings of the community.”

This dramatic fall in jury trial resolution, especially in our California employment law cases, can be attributed to the following:

1. Widespread use of arbitration. Employers have demanded that employees—as a condition of employment—give up their right to a jury trial and submit their discrimination, wrongful termination, whistle blower, retaliation and fraud cases to a single arbitrator. Everything is private, so there is no public record to assist other whistle blower-employees from finding out the basic facts. In essence the 7th Amendment’s right to trial by jury is given up. Health Care providers are less likely to provide safer or more cost-effective care. Trials can be the moving force in making employers implement affirmative anti-discrimination policies.

2.  Extreme Discovery. Nowadays, a full trial (or even arbitration) will require mountains of discovery. This includes depositions of health care providers, numerous witnesses to the plaintiff-employee’s good work habits and whistle blowing giving video-taped deposition testimony; experts in rehabilitation, economics or mental health or industry-specific knowledge as to, say, “standard of care”, and;  disk drives with millions of documents to be reviewed. California has made some inroads into limiting the length of depositions (ironically, not applicable to employment cases), and it is not unusual for major federal false claim or complex employment cases to result in twenty depositions, some lasting as long as two weeks!

3. Judicial Philosophy. As long as our California state judges view trials as “failed” resolution efforts; as long as urgent adherence to “fast track” rules continues and as long as judges demand settlement at all costs, the system has failed.

4. Summary Judgment. Through a procedure called “Summary Judgment and/or Adjudication”, courts have found a way of eliminating twice as many potential cases from jury or bench (the judge sitting as a jury) resolution as actually go to trial. Many courts refuse to find “triable issues of fact” for a jury to resolve. This is unfair and is likely not a fair resolution when the attorneys have conducted thorough discovery to find those golden nuggets aka “triable issues of fact” (see number 2, above).

5. Trot Reform. “Run away juries”, “litigation explosion”, etc., we’ve heard all these terms. Placing caps on damages (even the EEOC is not immune from capping damages based on company size, another great reason we encourage our clients to litigate under California state law.

As California’s leading employee-side law firm with offices throughout the state, we encourage and teach all of our associates to plan to try their cases. Next time you are called as a juror, honor that notice, be proud to serve if called. Salvador is counting on you! You as a juror will level the playing field between him and his behemoth employer.