The Vanishing Civil Jury Trial and Why You Should Care
This month an excellent article by Robert T. Eglet appeared in the official publication of the American Board of Trial Advocates. Mr. Eglet researched the statistical facts regarding the frequency of civil jury trials in the United States. The facts are surprising and alarming.This month an excellent article by Robert T. Eglet appeared in the official publication of the American Board of Trial Advocates. Mr. Eglet researched the statistical facts regarding the frequency of civil jury trials in the United States. The facts are surprising and alarming.
In federal court, less than 1% of all civil cases are resolved by a jury trial and that figure is dropping. In 1940, it was 15.2%.
In state courts in Texas, only 0.4% of civil cases are resolved by jury trial.
The percentage of tort cases that go to civil jury trial in state and federal courts is even lower.
There are many reasons for the vanishing civil jury trial. Those reasons include alternative dispute resolution, especially including mandatory arbitration clauses in contracts; high litigation costs and extensive pre-trial discovery; a growing judicial philosophy that discourages trying cases; the prevalent use of pre-trial summary judgments which trial judges liberally grant to dismiss cases and manage their caseloads; the doctrine of federal pre-emption which strips states of jurisdiction over many, many disputes which were traditionally resolved in state court; and, so-called “tort reform”.
If a politician or special interest group says that something they want is justified because the courts are overburdened with frivolous lawsuits, they are lying. Not just shading the truth or fudging, but lying. This is not a matter of opinion. The facts are the facts.
There are relatively few lawyers today who have substantial experience in actually trying cases to a jury and that number is shrinking quickly. This is a sad trend that has important consequences for the client and the general public. How can your lawyer realistically evaluate your case and advise you if he or she doesn’t have a body of actual trial experience to rely upon? How can your lawyer protect you in a trial if he or she hasn’t been in trials? How can lawyers learn the art of trial advocacy and honor the tradition of trial advocacy without opportunities?
The 7th Amendment to the United States Constitution guarantees the right to a jury trial in civil cases. Thomas Jefferson observed that trial by jury was
“the only anchor ever yet imagined by man which a government can be held to the principles of its constitution.”
Former Chief Justice William Rehnquist said that trial by jury in civil cases was a bulwark against tyranny and corruption and that
“juries represent the layman’s common sense and thus keep administration of law in accord with the wishes and feelings of the community.”
Clearly, our founders and great jurists have recognized the value of jury trials. I always wonder what they would say if they could see how far we have strayed?