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A Litigator's Take on Arbitration and the Demise of the Jury Trial

The Recorder

John Keker, who's made his reputation performing before juries, laments that many civil cases these days are routed to mediation and arbitration. "A lot of times in federal court you could fire a cannon down the halls and you wouldn't hit anybody," says the Keker & Van Nest partner. "There's nobody around." Keker spoke with The Recorder about the dearth of civil jury trials and what he thinks it means for the profession and the law.

Are you seeing a significant drop in the amount of jury trial work that's coming your way at the firm? No. We're not seeing a slowdown. We're recognizing a long, 10-year problem of a lack of civil jury trials in anything but product liability and personal injury cases. And that's not a slowdown. That's just the way it's been for a while.

How much of that do you attribute to the move towards more arbitration in the sorts of cases that used to produce civil jury trials? I think it's huge. I think the big cases that used to be tried to a jury are now going to arbitration because of the contractual terms usually imposed by one big party on the other side—whether it's an employment agreement, a merger agreement or certainly a consumer agreement. The defendants are successful at pushing cases to arbitration which is a forum that's favorable to defendants.

Do you do much arbitration yourself? Yes.

And how do you like it? I hate it. It lacks the formality of the court system and it lacks review of the court system. There's no discipline in it.

What about that lack of formality benefits defendants? You can be a conference room lawyer and make your way through an arbitration. You know you don't have to worry about punitive damages in virtually all arbitrations. You don't have to worry about the rules of evidence. And there are often limits on discovery that make it better for defendants than it is for plaintiffs. It's trial for the one percenters is the way that I think about it.

Just because of the odds being in the defense's favor? No. [It's because] of arbitrators. Not all [of them]. Some arbitrators are wonderful and as former judges still try to act like judges. But quite often they act like people who are there to kind of keep everybody happy.

So how many of the young lawyers at your firm are learning to practice within the arbitration context versus jury trials? They're doing both. We promote jury trials when we get them and we promote them in our pro bono practice too. They work on civil rights cases and we send them off to the district attorney or public defender to spend some time. So, they're getting jury trials but they're also getting experience because they work with all of us on arbitrations. We also do a lot of patent jury trials, but that's beginning to dry up as the patent area dies down.

Are there other areas that you've found yourself moving into? We're doing a lot of antitrust cases and it's very difficult to get an antitrust case to trial. Antitrust cases tend to settle.

What might we be losing in terms of lawyering skills? It's not just lawyering skills. What we lose is law. When people go to trial and those trials are appealed and appellate courts write opinions, law develops and law changes and law evolves. When all of that happens in an arbitration context, nothing happens. The other things that obviously atrophy are jury trial skills. Judges don't get enough of them, so judges don't like civil jury trials—some judges, not all. The lawyers don't get enough of them, so they're scared of civil jury trials. Right now my understanding is that 1.2 percent of all federal civil filings end up in a jury trial. That means the jury trial is almost extinct and in England they are extinct.

What do you tell young lawyers who want to have a career that mirrors your own? You tell them that they have to find opportunities for trial work anywhere they can get it, which means that they shouldn't limit themselves to one area of law. They ought to be just as able to try an antitrust case or securities case or SEC case or a criminal case. That's one thing. You can't just do one thing. And second you have to take every opportunity you can to get a trial. If that's a pro bono civil rights case that some judge has asked you to do, then you go grab it. If that's going to work for the public defender or the DA, you go do it and try a few cases in a couple of months. You've got to get the experience any way you can. You've got to push for it.

What have you been up to most recently? This year is a good example. I had a civil trial … it was actually going to be a probate trial that was going to be in San Francisco Superior Court that we went to trial call in March and the judge sent us out to a settlement judge and the case settled. Then the next month I had a civil [bench] trial for the San Diego County Water Authority against the Metropolitan Water District ... in front of [San Francisco Superior Court] Judge [Curtis] Karnow. I had a class action case in federal court in Miami and we got two days before the trial was supposed to start on the day after Labor Day and the plaintiffs basically caved and so we settled the case. I just finished an arbitration in early November in L.A.

Are water rights cases ones that are apt to go to trial? Yes. Those cases do go to trial. They're court trials.

Do you like doing those? Sure. I like any trials. But what I really like are jury trials and they're few and far between in civil cases. ... [T]he mediation and arbitration process has made itself more and more expensive. Years ago a mediation was supposed to be one day. Now it can go on forever, periodically. Arbitrations are supposed to be sweet and simple. They never are. So they've become astonishingly expensive. That's one problem. Another problem is the ridiculous expense of litigation with eDiscovery and document discovery, so there's even more incentive to settle than there ever was. And I do think that as fewer cases get tried lawyers who call themselves litigators, their skills and their willingness to go to trial both atrophy and they're just not as eager to go to trial. I like going against people who like going to trial: Jim Brosnahan, Joe Cotchett. I like having cases with them or against them. They're real trial lawyers.

What about trial do you like so much? What I enjoy is being able to drill down intensely to the facts and absorb it. I like the cramming that goes on preparing for trial. I like thinking about cross examination, thinking about the trial as a piece, thinking about persuasion, thinking about graphics, thinking about metaphors, thinking about evidentiary problems. I love just zeroing in ... We may be maladjusted individuals, but that's what a lot of us are in it for. That's what we like. Preparing for trial and trying cases.