I try jury trials. I also try arbitrations. Unfortunately, anyone expecting to talk to a jury this year is likely out of luck. Although a small number of social-distanced jury trials were attempted in 2020, for the most part they were a disaster. I would say it is fifty-fifty whether any California case gets in front of a jury before the end of 2021.

Virtual arbitrations, on the other hand, are going forward. Although there are some logistical issues, with only one or three arbitrators on the Zoom it is much easier to maintain focus with a virtual arbitration.

There is a temptation to stipulate with one’s adversary (or abide a judge’s suggestion) to move from the jury system to arbitration in hope of resolving the case before 2022. Arbitration is perfect for many types of disputes, but is it right for your particular case? Contrary to popular belief, arbitration is not always plaintiff-hostile and defendant-friendly. It all depends.

Many parties fear the jury system based on an outdated perspective regarding runaway juries. Yes, every now and then there is an aberrational $2 billion Monsanto verdict that gets everyone’s attention. However, when that happens the trial judge and the appellate court have the ability to rectify it. That is not the case in arbitration. Indeed, there are many pro-defendant characteristics of the court system that are not available in arbitration. Before you stipulate to go to arbitration, keep these in mind:

• Discovery is almost always limited in arbitration (one of its benefits), so depositions, contention interrogatories and RFAs (Requests for Admission) are likely not available.
• It is almost impossible to get an arbitration dismissed before the hearing. If you think you have a great motion to dismiss, a statute of limitations defense or contractual defense, or other strong argument which presumably would entitle you to MSJ (Motion for Summary Judgment) in the jury system, you will almost never get it granted in an arbitration.
• Whereas the relevance objection is one the important objections in front of a jury, the rules of arbitration mandate that arbitrators are not limited to considering relevant evidence. In other words, in arbitration everything gets in, one way or another. For that reason, sometimes arbitration can be longer and more unwieldly, and thus more expensive, than a jury trial.
• Last, and perhaps most significant, there is virtually no right to appeal in arbitration. Period.

This isn’t to say that you shouldn’t stipulate to arbitration. I am chair of the San Francisco Bar Association’s Arbitration Section. I have arbitrated many cases and the vast majority have had fair results. However, I can also say the same thing about the jury system. It all depends on the case. Before you agree to waive your constitutional right to a jury trial, think about the issues described above. One thing I can promise is that arbitration will be faster in 2021 than the court system. Otherwise, arbitration may be your best option, or it could be your worst. As any good lawyer will tell you, it depends.

About the Author:

John Worden is a trial lawyer with Venable’s San Francisco Office. He has tried and arbitrated dozens of cases for plaintiffs and defendants. He is the co-chair of the BASF ADR/Arbitration Section (with Mark LeHocky/ADR Services), and is a member of ABOTA, an outfit comprised solely of experienced trial lawyers committed to preserving a constitutional right to a trial by jury.