Montana Adopts a
for Jury Trials
By L. Randall Bishop and the Hon. Amy Eddy
ABOTA’s primary mission is to protect and preserve the civil jury system. The Seventh Amendmen to theUnited States Constitution wasratifiedin1791as part of the Bill of Rights and preserves a citizen’s right to a trial by jury—a fundamental pillar of our government. In 2014, ABOTA founded Save Our Juries to educate the public about their disappearing right to a jury trial for civil cases.
The Montana Constitution was adopted in 1972, and has similar protections for the right to a jury trial in its Declaration of Rights:
The right of trial by jury is secured to all and shall remain inviolate. But upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury or before fewer than the number of jurors provided by law. In all civil actions, two-thirds of the jury may render a verdict, and a verdict so rendered shall have the same force and effect as if all had concurred therein. In all criminal actions, the verdict shall be unanimous.
Mont. Const., art. II, § 26.
Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character . . . Right and justice shall be administered without sale, denial, or delay.
Mont. Const., art. II, § 16.
Sadly, despite an ever-increasing civil caseload in Montana district courts, the number of civil cases reaching a jury trial has continued to decline. Fewer than .5% of civil cases went to jury trial in Montana during 2018. Recognizing the constitutional significance of the right to jury trial in civil cases, including significant access to justice concerns, the Montana Supreme Court recently adopted a Simplified Procedure for Civil Cases. Rule 6, Montana Uniform District Court Rules (effective 1/1/2020).
The rule was unanimously proposed by the Montana Uniform District Court Rules Commission. The Commission is comprised of experienced and diverse judges and civillitigators, including Commission Chair, the Honorable Amy Eddy (Montana Eleventh Judicial District Judge and Past President of the Montana Trial Lawyers Association (MTLA)), the Honorable Gregory Pinksi (Montana Eighth Judicial District Judge), Sean Goicoechea (President-Elect of Montana ABOTA and Vice-President of the Montana Defense Trial Lawyers Association (MDTL)), Elizabeth Halverson (former Board Member of MTLA), Larry Howell (Associate Dean and Legal Writing Professor at the Alexander Blewett III School of Law at the University of Montana), James Molloy (President-Elect of MTLA), and Brooke Murphy (President of MDTL).
The Montana Supreme Court opened public comment on the proposed rule in August of 2019, and Montana ABOTA assumed a leadership role in promoting the rule’s adoption. In a letter to Chief Justice Mike McGrath, the position of Montana ABOTA was as follows:
Montana ABOTA has carefully reviewed proposed Rule  of the 2019 Proposed Amendments to the Uniform District Court Rules, including the following statement of purpose:
. . . to protect the right to trial by jury in civil actions; to provide maximum access to the district courts and opportunity for citizens to participate in the civil justice system in civil actions; to enhance the provision of just, speedy, and inexpensive determination of civil actions; to facilitate limited discovery and decrease expenses; and to provide opportunities for counsel to train in civil trial practice.
Montana ABOTA strongly supports the above-quoted purpose of proposed Rule  and believes that the procedures outlined in the Rule provide an excellent means by which the delay, expense and burden of civil litigation can be lessened and the right to civil jury trial can be enhanced.
As adopted, Montana’s new rule generally guaranteesthatif both parties opt-in to the Simplified Procedure, the presiding judge will set a date certain for trial within six months. The trial may not exceed three days. The rule then requires initial disclosures providing information about witnesses, documents, damages and insurance contracts, lay witness statements, and expert reports. The expert reports are to be sufficiently detailed so that expert depositions are not allowed absent leaveof court.Discoveryislimitedto25interrogatories, 25 requests for production, and three depositions. To expedite the proceedings, discovery motions are not permitted and instead the parties may argue their position during a hearing before the Court. Similarly, motions for summary judgmentare not allowed absent leave of court. A full text of the rule may be found here.
This rule smartly promotes the idea that the vast majority of civil cases—including complex civil cases—do not require full application of the federal or state Rules of Civil Procedure, or a lengthy trial setting. The rule concedes that the current civil litigation environment has resulted in attorneys feeling trapped into over-litigating their cases at great personal sacrifice, clients professing astonishment at the cost and time necessary to bring their case to resolution, and the limited resources of the civil justice system being squandered with no appreciable improvement in the quality of justice provided to litigants. Instead, the rule acknowledges that through intelligent and strategic litigation, these matters can quickly, efficiently and affordably be brought before ajury—where they belong. Additionally, the rule’s built-in flexibility allows it to meet the needs of individual cases through efficient and differentiated case management.
Judge Eddy has been piloting the Simplified Procedure for Civil Cases in her jurisdiction for the past six months with preliminary success. The largest perceived barrier to participation has been the three-day trial limitation. However, according to the National Center for State Courts, On Trial: The Length of Civil and Criminal Trials (1988), just 20 years ago, the median length of a civil jury trial was less than two days, not including the median length of the jury’s deliberation, which was two hours. The shortest cases involved motor vehicle torts with a median length of less than 1.5 days, not including the median length of the jury’s deliberation, which was 1.5 hours. The longest cases involved product liability claims with a medianlengthofapproximately 3.5 days, not including the median length of the jury’s deliberation, which was two hours. These data reveal that even complex civil cases can be tried to a jury within three days, if only counsel and courts prepare and think carefully about the facts that truly matter.
Preservation of the civil justice system requires both judges and lawyers not just to fall inloveagain with juries, but to actively pursue those juries to protect the fundamental constitutionalrights of litigants whose interests may be better served by a jury of their peers. Successful application of this rule is one way to achieve these goals. Montana ABOTA invites every ABOTA Chapter to join us in falling in love with juries again.
Randall Bishop is the President of the Montana Chapter of theAmerican Board of Trial Advocates.
The Hon. Amy Eddy is a DistrictCourt Judge in Flathead County, Montana.
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