Spiral Dynamics and the Vanishing Jury Trial

Law360
July 7, 2017

By Jennifer L. Gibbs
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Over the past 20 years, the number of jury trials has been on a dramatic decline. In fact, the percentage of federal civil cases currently disposed of by a judgment at trial is less than 1 percent, with similar statistics for state court cases.[1] Some attribute this decline to tort reform.[2] Some claim it is the push for disposal of matters through summary judgment, judgment on the pleadings, and Daubert rulings.[3] Others attribute the vanishing jury trial to rising litigation costs.[4] Mandatory arbitration clauses and mediation orders also likely contribute to the steep decline in trials by jury.[5]

Those arguing that the decline of the jury trial must be reversed, often cite the following quote from Democracy in America by Alexis de Tocqueville:

“I do not know if the jury is useful to those who have legal proceedings, but I am sure that it is very useful to those who judge them. I regard it as one of the most effective means that a society can use for the education of the people.”[6]

But what if the vanishing jury trial is evidence of an expected development of human consciousness — explained by a theory known as spiral dynamics? Timothy Batdorf, in an article titled Beyond Rationality: Using Integral Theory to Understand the Evolution of Law and Legal Systems, notes:

Nothing in the law exists without the intervention of the human mind. Every law, regulation, and statute — and all of their subsequent interpretations — and every legal theory, legal procedure, and legal system, are a direct result of human consciousness. As human consciousness evolves, so, too, does the law. Law reflects the underlying consciousness that creates it. Because law is a construct of human consciousness, it is incumbent upon us to understand how human consciousness develops and its implications for the law.[7]

Thus, as human consciousness evolves, the importance and utilization of the jury, a.k.a. the “gods of guilt,”[8] may be a natural consequence of societal evolution.

What is Spiral Dynamics?

Spiral dynamics is a model or theory of human development, based upon the work of Clare Graves.[9] Graves reasoned that humans develop new psychological stages in response to fluctuating life conditions. “When a society contains a critical number of people at a given stage, the society itself transforms, creating the social conditions for yet another stage of psychological development.”[10]

Because the human brain is a continually active, continually changing self-organizing network, it is expected that a transformation process will occur over time. As society is nothing more than a network of communicating brains, social transformation is an expected emergent phenomenon which reflects these new psychological stages.[11]

Spiral dynamics is comprised of two tiers. The first six levels are "subsistence levels" and evidence “first-tier thinking.”[12] Graves hypothesized that an expected revolutionary shift in consciousness would then occur, and “second-tier thinking” would emerge. Each stage is represented by a color, and is briefly described in the chart below.[13]

Green Law

It is thought that the “green” level began around the 1960s and represented at the time the “leading-edge” of consciousness evolution, one step beyond orange.[14] Green’s impact on the law emerged when the law began to experience “the simultaneous, synchronistic appearance of multiple, alternative approaches to law that use psychologically-beneficial and humanistic ways to resolve legal issues.”[15] In her book titled, Lawyer, Know Thyself: A Psychological Analysis of Personality Strengths and Weaknesses, law professor and author Susan Swaim Daicoff notes:

Although these developments may at first glance appear unrelated, they share a desire to resolve legal disputes and matters in ways that are psychologically optimal for the people involved, both in procedure and substantive outcome. They seek to preserve interpersonal relationships and the relationships between people and their communities. They avoid doing harm to people and seek to maximize the emotional well-being of all involved. In doing so, they explicitly go beyond simple legal rights, duties, and obligations to focus on a broad array of concerns embedded in the particular legal matter presented.[16]

Although those that have considered spiral dynamics and its effect on the legal system agree that green’s full impact on the law is not likely to be known for several more decades, the decline of the jury trial appears to be a natural consequence of the green tier thinking.[17] Even when “winning is still the name of the game” in litigation, even seasoned litigators will admit that that “winning these days hardly ever involves a trial.”[18] Widespread use of arbitration, mediation and collaborative law are reflective of green law principles, and corroborate the theory that green law is a likely link to declining jury trials.[19]

Beyond Green — Integral (Yellow) Law

Per spiral dynamics, the green postmodern stage is followed by yellow — characterized as an integral consciousness stage. The yellow stage has an extremely important feature, which is that it is not just a level jump, but a tier jump; and moves from an ethnocentric identification into a world-centric identification. Ethnocentric levels or stages inhabit the world of, “I am right, and you are wrong.” World-centric thinking is the world of, “I am right, but partial, and so are you.”[20] When the yellow second-tier occurs, the theory is that an individual can understand and integrate the various first-tier stages into a meaningful and systematic whole. “The emergence of second-tier consciousness, commonly referred to as the integral level is expected to have huge implications for the law and for legal systems.

For example, an integral legal system would be geared toward the functional, efficient and effective resolution of conflict by integrating the best aspects of the lower, first-tier stages and minimizing their counter-productive aspects. In examining the likely characteristics of an integral legal system, lawyer Timothy Batdorf states:

An integral legal system thus seeks to minimize: (i) the overly simplistic “good versus evil” approach (mythic, stage four); (ii) the overly competitive and materialistic aspects that entrench positions and prolong conflict (rational, stage five); and (iii) the never-ending dialog in search of mutual understanding (green pluralism, stage six).[21]

An integral legal system would likely work to integrate various conflict resolution processes that have been developed at the lower, first-tier stages, such as early neutral evaluation, mediation-arbitration, and collaborative process.[22]

Moreover, integrally informed lawyers would recognize the advantages and limitations of each of the lower stages, and would be able to integrate those stages into a larger contextual framework — offering flexible and functional solutions to difficult problems — problems that prove impossible for first-tier thinking lawyers to resolve.[23]

Could this integral legal system see an emergence of the jury trial? According to the theory of spiral dynamics — yes. Just as the integrally informed lawyer should be able to select the conflict resolution technique most appropriate for the dispute at hand, an integrated legal system should provide appropriate methods for conflict resolution that are both cost-effective and viewed as fair by both sides of the docket. Moreover, even if our society evolves, not yet to yellow, but to an “anti-green” society, employing the “gods of guilt” to resolve disputes may once again hold a prominent place in American jurisprudence.

In conclusion, the current modern legal system is built upon the notion that intellectual combat through written and spoken word is the best way to resolve conflict. However, critics of that system say we are employing 18th-century technology to resolve 21st-century problems.[24] Employing green law, or perhaps even “second-tier” integrated law (including post-rational methods of dispute resolution) is inevitable. To that end, seasoned litigators may have no choice but to trade in the title of “king of the courtroom” for that of “integrally informed lawyer.”

If Graves’ theory of spiral dynamics proves to be correct, and green-turns yellow-turns turquoise, a more holistic approach to resolving disputes may be on the horizon. Those with a more “rational” or “orange” approach to litigation may be thankful that, for now, litigation and mediation do not involve the parties sharing a meal and enjoying music before seeking to resolve the dispute — as that may be the reality of dispute resolution in the not-so-distant future.

Jennifer L. Gibbs is a partner in the Dallas office of Zelle LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See U.S. District Judge Xavier Rodriguez, The Decline of Civil Jury Trials: A Positive Development, Myth, or the End of Justice As We Now Know It?, 45 St. Mary’s L.J. 333, 334 (2014).

[2] See Erin Coe, Can the Legal Industry Keep Trial Advocacy Alive? Law 360(March 11, 2017); See also U.S. District Judge Xavier Rodriguez, The Decline of Civil Jury Trials: A Positive Development, Myth, or the End of Justice As We Now Know It?, 45 St. Mary’s Law Journal 333, 339 (2014).

[3] Patricia Lee Refo, The Vanishing Trial, Litigation online, Volume 30 Number 2 (Winter 2004).

[4] Stephen D. Susman, Disappearing Civil Trials, Civil Jury Project for NYU School of Law for 35th Annual Conference of American Society of Trial Consultants (May 20, 2016).

[5] Todd Ross, A Litigator’s Take on Arbitration and the Demise of the Jury Trial, The Recorder (December 21, 2015).

[6] See Rodriguez, 45 St. Mary’s L.J. at 337.

[7] Timothy D. Batdorf, Beyond Rationality: Using Integral Theory to Understand the Evolution of Law and Legal Systems, 32 W. Mich. U.T.M. Cooley L. Rev. 293, 293–94 (2015)

[8] A term used to describe the jury by Michael Connelly, author of The Lincoln Lawyer. https://www.amazon.com/Gods-Guilt-Lincoln-Lawyer-Novel/dp/0316069515.

[9] See generally http://www.clarewgraves.com/

[10] Troy Camplin, Spiral Dynamics: An Overview (located at https://fee.org/articles/spiral-dynamics-an-overview/) (last visited June 28, 2017).

[11] Id.

[12] http://rationalspirituality.com/articles/Ken_Wilber_Spiral_Dynamics.htm (last visited June 27, 2017).

[13] http://www.spiraldynamics.net/DrDonBeck/essays/stages_of_social_development.htm (last visited June 28, 2017).

[14] https://libertyblitzkrieg.com/2017/02/08/how-a-breakdown-in-liberal-ideology-created-trump-part-1/ (last visited June 27, 2017).

[15] Batdorf, 32 W. Mich. U.T.M. Cooley L. Rev. at 339 (quoting Susan Swaim Diacoff, Lawyer, Know Thyself: A Psychological Analysis of Personality Strengths and Weaknesses 170 (2014) (finding that green alternative approaches to the law include procedural justice, therapeutic jurisprudence, problem-solving courts, restorative justice, collaborative law, transformative mediation, holistic lawyering, creating problem solving, etc.).

[16] Id.

[17] Id. at 339.

[18] Marc Galanter, The Decline of Trials in a Legalizing Society, 51 Valparaiso University L. Rev. 1, 19 (2017).

[19] Although the precise cause of the decline of the jury trial is unknown, most recognize that tort reform, mediation and arbitration play a large part in the decline.

[20] http://blog.jfku.edu/spiral-dynamics-theory-and-the-2016-presidential-election/ (last visited June 28, 2017).

[21] Batdorf, 32 W. Mich. U.T.M. Cooley L. Rev. at 349.

[22] Id. at 347.

[23] Id. at 343.

[24] Id. at 353.