Yes, the steady decline in the jury trial is the dirty little secret of a country that considers it one of its most precious institutions. No less an architect of the Constitution than James Madison felt that “[t]rial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” Blackstone considered the jury trial “the glory of the English law.” As we prepare for the 800th anniversary of the Magna Carta, the document that memorialized the right to a trial by jury, we should pause to consider both the causes and the consequences of this erosion of the very architecture of the American judicial system. Indeed, even in England, the civil jury trial has all but disappeared. With the rarity of jury trials in personal injury cases, what Lord Devlin (in 1956) exalted as a “little parliament” and “the lamp that shows that freedom lives” is now used most often in defamation cases.
First, let’s note that the decline in U.S. jury trials is not due to a decline in the number of lawsuits filed. There has been no sea change in America’s litigious society—during the same period that the number of trials diminished so substantially in federal courts nationwide, the number of civil cases filed and dispositions increased fivefold. Perhaps the decline is due to a relocation of sorts. At both the state and federal levels, many disputes have shifted to become the responsibility of administrative agencies like the Equal Employment Opportunity Commission, the Board of Veterans’ Appeals, or state workers’ compensation boards. Substantive changes in the laws also help account for the diminishment of the courtroom’s importance. For example, in 1989, Texas overhauled its workers’ compensation system, essentially mandating administrative resolution of claims. In 1986, 430 workers compensation jury trials were held in Texas; by 2004, that number had plummeted to 24.
Another reason for the vanishing jury trial is the fact that arbitration has siphoned off a large number of cases from the judicial system. The caseload of the American Arbitration Association nearly quadrupled between 1994 and 2002, to more than 230,000 cases. Many industries have incorporated binding arbitration provisions into contracts governing everything from employment to licensing to routine consumer transactions. In our global economy, arbitration has become the preferred mechanism for resolving international disputes. Arbitration is often touted as quicker, cheaper, and less risky than litigation. However, as a lawyer who has extensive commercial arbitration experience, I can tell you that in many cases, arbitrating a case has not led to swifter justice or significantly lower legal fees. And with the lack of any appellate review, arbitration can be risky even when compared to litigation.
Other reasons that have been pointed to as contributing to the decline in jury trials are tort reform measures at the state level and an increase in summary judgment dispositions at the federal court level. Many state legislatures in the United States embraced varying degrees of tort reforms that made filing civil suits riskier and less attractive for litigants. In Texas, for example, reform measures have drastically reduced the number of medical malpractice lawsuits. Federal courts, aided in recent years by U.S. Supreme Court decisions that enable them to dispose of cases in advance of trial, (these include the 1993 Daubert decision establishing stringent criteria for admitting expert testimony, and the 2007 Twombly and 2009 Iqbal decisions that increased the pleadings requirements necessary to survive a motion to dismiss) are granting more summary judgments than ever. Consider this: in 1975, twice as many cases were resolved by trial as by summary judgment. By 2000, the field had flipped, with U.S. district courts resolving three times as many cases via summary judgment as by trial.
Regardless of the multitude of potential factors responsible for the drop in civil jury trials, just what are the consequences for the legal profession itself and for society at large? First of all, it means an erosion of the trial skills and an ever-expanding experiential gap. Fewer trials mean fewer lawyers who know how to try cases and how to communicate with juries. Younger generations of lawyers are not getting the same amount of courtroom experience as their predecessors, which impacts the teaching and mentoring of future generations of lawyers. For example, it is common to find litigation partners at major U.S. law firms who have never tried a case to a jury. And it is a ripple effect. If we have fewer jury trials, we don’t need as many trial judges. Fewer trials also means fewer appeals (and therefore, fewer appellate judges). Fewer appeals translates to less development of the common law, which in turn means diminished outcome predictability to help lawyers in advising their clients.
However, the most serious impact of a decline in jury trials is the corresponding decline in the public’s participation in the justice system. The American justice system depends on jury service, not only for routine functioning but as an opportunity for building “social capital” and fostering trust in judicial institutions. With a dramatic decrease in the number of jury trials in civil cases, we exclude from this process the very people needed—the public—to support one of the cornerstones of our democracy.
So what can be done to take the civil jury off the endangered species list? Many theories have been advanced, including adopting approaches to help alleviate the cost and extent of discovery—a factor that some observers point to as a reason for the move away from jury trials. But I think a change in how we look at trials is needed first. For too long, too many of those vested in the system—including many judges and litigants—have regarded a case that goes all the way to trial as a failure and a sign that settlement efforts did not work. But not every case is destined for settlement. As Judge Patrick Higginbotham of the U.S. Court of Appeals for the Fifth Circuit has commented, “Trials reduce disputes, and it is a profound mistake to view a trial as a failure of the system. A well-conducted trial is its crowning achievement” (Patrick Higginbotham, So Why Do We Call Them Trial Courts? 55 SMU L. Rev. 1405–1407 (2002)).
The civil jury trial in the United States is more than a pillar of our justice system, and more than a reflection of the public’s participation and confidence in our courts. It is an ideal worthy of saving.