COURTROOM OR CONFERENCE ROOM: CONSIDERATIONS FOR JURY TRIALS V. ARBITRATION

Written by Evangeline A.Z. Burbidge^* & Nitesh Daryanani^**

In the minds of many, jury trials define the American justice system. They are protected by the Sixth and Seventh Amendments to the U.S. Constitution and are the focus of almost every courtroom drama (including the TV show Suits, which gives clients lots of interesting ideas about the actual practice of law). However, as we frequently explain to those who have retained us, unlike on TV, only a small percentage of cases in the United States are actually heard by a jury. (See Smith et al., Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does it Matter? (2017) 101:4 Judicature 26.) More importantly, we also explain, an increasing share of business cases are resolved through negotiated settlements or arbitration.

In this article, we describe a framework we use to educate clients about the important differences between a jury trial and arbitration, and we offer some tips on presenting a client’s case in either forum based on our experience. For the purposes of simplicity, we do not address bench trials in this article because they can be viewed — in some respects — as a hybrid between these two options.

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