If the Bronx is known for its backlog (for details, click here), it is also known for its high jury verdicts (to see just how high, click here.) The summary jury trial program, which is being rolled out after a successful trial run this summer, is designed to combat both.

Whether verdict reductions are justified, of course, and whether greater expediency might increase attorney malpractice exposure, are two questions yet to be answered.

The docket-busting sessions resemble a game of speed chess. Attorneys in summary trials get 10 minutes to open, 10 minutes to close, and an hour to present evidence. Two witnesses may be called on either side, though no medical experts. Awards are capped at insurance policy maximums, though attorneys may agree on prearranged high-low parameters.

The program is entirely optional. It is also binding, an element that initially was somewhat controversial.

“There was phenomenal skepticism amongst attorneys, over a year ago when I first got involved,” says Frank Vozza, chair of the Bronx County Bar Association subcommittee on summary jury trials. That panel was instrumental, along with Administrative Judge Barry Salman, in getting big insurance companies on board.

“When it was presented to the Bronx bar, everybody said, ‘you’re out of your mind’ because as originally proposed it was supposed to be binding and non-binding, to a point where a judge could compel someone to do non-binding arbitration. There’s some judges who would make you try it twice! But making it binding knocked out 80 percent of the opposition, because people realized nobody’s going to force you to do it, and the decisions will stand.”

So far, attorneys handling 47 tort cases have opted to use summary trials. One benefit, especially in trials involving auto accidents, is that summary trials eliminate the expense of paying doctors to testify. That can run anywhere from $5000 to $20,000 and cut deeply into the award of a plaintiff with a limited insurance policy.

“I think for a certain limited type of case it’s very good,” says Jeffrey Liebowitz, who tried one of the first experimental cases this summer, before William Gerace, a Judicial Hearing Officer and former judge from Chautaqua County, who was instrumental in bringing the summary jury trials to New York in the mid 1990s.

“You’re not going to see anyone willing to use it on substantial exposure cases, though. My case had a limited policy of $25,000. If I had $100,000 on the line, I don’t think I’d be willing to limit the proof the way it requires.”

“It’s a glorified form of binding arbitration,” Liebowitz continues. “Except, you’re invoking a jury element. Arbitrators are in business to stay in business. They have no balls because they want everybody coming back. So they divide everything down the middle and make it sting a little for everybody.”

Liebowitz had actually needed an additional witness to prove that his client was possibly the owner, but certainly not the driver, of a vehicle that struck a 300-pound woman, and fled the scene.

“I wasn’t trying to guild a lily by bringing in multiple witnesses,” he says. “Judge Gerace was flexible, but if you’re really running over your time they’re going to ask you to finish. If you have an easy case, it’s fine. But this was not an easy case. I wanted to use the ‘fat bastard’ defense. But then, the plaintiff had gastric bypass surgery. She came strutting into the courtroom at 105 pounds, all thin and demure, and that went out the window.”

“I’d just read about the efforts to do away with the jury system in civil cases,” says Gerace, who’d been asked to address a backlog that had grown due to his predecessor’s duties across three counties. “I thought summary jury trials would be an excellent way of preserving the jury system in civil cases, and not overburdening the cases.”

Judge Thomas Lambros of Federal District Court in Ohio had first used summary jury trials in 1980 to encourage court settlements in the face of crowded dockets. To try a pilot project in New York more than a decade later, Gerace got in touch with Vincent Doyle, Administrative Judge for the Eighth Judicial District, who authorized the practice on a non-binding basis.

“Early on, some attorneys were skeptical of non-binding trials,” says Gerace. “But as it turned out, none of the cases we scheduled for ‘non-binding’ in the last five to six years have opted to go to trial after the verdict.” In six early cases in which attorneys did opt to follow the summary trial with their “regular” day in court, five results were quite similar to the outcome from the abbreviated proceedings.

Early critics of the practice include Richard Posner, a prominent judge with a putative conservative streak who sits on the U.S. Court of Appeals for the Seventh Circuit. In an oft-cited 1986 University of Chicago Law Review article, he worried that such trials remove from the jury their most basic duty: evaluating the credibility of witnesses. In New York, grumblings of dissent are few and far between, but prominent defense lawyer Murray Richman offers at least one disagreement.

“Clearly, the Bronx [court] administration doesn’t like the verdicts in the Bronx,” says Richman. “They complain that the criminal side acquits too much, that the civil side gives too much. But in jurisdictions like Putnam, where everybody goes to jail whether they’re guilty or not, that’s ok.

“Look, the jury system is great, provided it does what judges want it to do. But it’s not so great when it exercises its own complete discretion. We trust in the populace only to the extent that they agree with us. . . . I understand that the jury system is a large waste of time. Agreed. But so is democracy.”

Before summary jury trials, says the Bronx Bar’s Vozza, insurance companies forced plaintiffs to trial, either to flex their financial muscle or because they genuinely believed that the plaintiff had no case. The non-jury alternative of bench trials wasn’t popular with insurance companies, Vozza theorizes, because in bench trials judges would subconsciously penalize insurance companies for their difficult negotiating posture.
Vozza recalled a conversation he had with counsel at Allstate Insurance Company. “They said, ‘Even if it’s a garbage case, we’re going to trial. Even if it’s for $1000, we’re going to trial. If you have a big soft tissue case we don’t like, we’re going to punish you for it.’”

But with respect to summary jury trials, Vozza says, Allstate was ecstatic. “There’s the benefit of a jury untainted by the system, and they saw pretty good results in summary jury trials upstate.”

The statewide coordinator for summary jury trials is Judge Lucindo Suarez, who on the program’s first day took a seat in the back row just before lunch. In 2005 Salman, the AJ, decided to cut into his court’s backlog and get rid of “the crap,” as he puts it, “the 25,000 cases that tie up a courtroom for two weeks.” Then the Presiding Judge of the Appellate Term, Suarez agreed to manage the program, bringing him back to the Bronx, where he had sat in the Civil and Supreme Courts in the mid-90s.

“Summary jury trials have always interested me because I’m the kind of judge who moves quickly,” Suarez explained in the hallway, after the jury had left for lunch. “When I did trials, I was one of the few judges who sat in on jury selection, although according to civil rules a judge doesn’t have to.”

Years ago, this meant that it might take up to five days to pick a jury. In summary jury trials, by contrast, a judge manages voir dire: attorneys are limited to two peremptory challenges and have ten minutes to ask questions (“I can hear the bell ringing!” the plaintiff’s attorney had quipped during jury selection that day.)

For some legal malpractice attorneys, however, such justice lite could expose attorneys to more malpractice claims in anything but the simplest slip-and-fall or motor vehicle cases.

“When you try a case, you have to satisfy the necessary burdens upon you to make out your cause of action,” says legal malpractice attorney Michael Levine. “And in many instances you can’t do that with one witness. In some motor vehicles cases you can. But in some cases you can’t — it’s just not possible — and those are the kinds of cases that would not be suitable for resolution within a day’s time.”

“I’m sure there’s a natural inclination for a client to get the case tried as soon as possible,” continues Levine. “But for a complicated case, I’m not sure that’s a good idea.”