As any trial judge or trial lawyer knows, the number of trials has been decreasing dramatically since 1986. This is occurring in both state and federal courts, in all venues and in most kinds of cases. It has occurred in both criminal and civil cases, but for different reasons; and in both jury and nonjury civil cases for similar but not identical reasons.
The general public is unaware of this trend because of the increasing fascination with trials on television and in the movies.
While no one denies that civil jury trials could soon become extinct, there is little agreement on the reasons for this. Some have suggested that there are fewer civil trials because the rules of civil procedure encourage the use of pretrial discovery rather than the trial itself, to reveal what really happened, that after discovery is complete, an expensive trial is superfluous. However, it was in the late ‘80s that civil trials began to decline, and the liberal discovery rules were operative long before then. Nor did anything happen around that time to make trials more expensive.
In federal courts the decline coincides with the Supreme Court’s 1986 decisions instructing trial courts to grant summary judgments unless the plaintiff proves the probability of his allegations. It is clear that those decisions and other judicially created obstacles to trials were the products of the “lawsuit abuse” movement that gave us so-called “tort reform, securities law reform, antitrust reform, class action reform and patent reform.”
Those judicial obstacles–erected by judges who had never tried jury cases–to protect businesses from having to confront juries, include: enhanced pleading, summary judgment motions, mandatory mediation, Daubert motions, class certification hearings, and motion in limine practice.
There has been so much emphasis on managerial judging and speedy case disposition that some judges view it a failure if they have to try a case. And the many judges who really want to try more cases say they can’t find lawyers who want to go to trial. They say we have created a generation of lawyers and trial judges who are uncomfortable trying cases to juries.
Finally, the Supreme Court’s affection for arbitration as a form of private dispute resolution makes it an obvious alternative to any form of public trial.
Last fall the Civil Jury Project at NYU School of Law was established to study the reasons for the decline in civil jury trials, whether it matters and whether anything can be done to reverse it. It is the only academic center in the country devoted exclusively to the exploration of these issues. On its website are listed hundreds of judicial, academic and jury consultant advisors.
Its projects range from empirical research on why trials are declining, whether jury service makes for better citizens, and whether various innovations can improve the result for the parties and the experience for the jurors; to what judges can do to make jury trials more accessible, including providing training opportunities to young lawyers.
Innovations being suggested and studied include: opening statements before voir dire, substantive preliminary instructions on elements of proof, juror questioning of witnesses, interim attorney arguments, allowing jurors to discuss evidence before deliberations, back-to-back expert witnesses, and time-limited trials.
Currently judges are being surveyed on whether they have used or would be willing to try, any of these innovations. Trial lawyers are being surveyed as to why jury trials are disappearing. The project has sponsored an all-day conference on the State of Civil Jury Trials and a public discussion with the only Supreme Court Justice–Justice Sotomayor—who has conducted a jury trial. It has announced the program for an all-day conference on The Trial By Jury of Patent Cases for September 30th at NYU.
The right to trial by jury of civil disputes, guaranteed by the Seventh Amendment and virtually every state constitution, is unique to our country and there are good reasons, apart from that, to protect that right. Today 75% of lawsuits are filed in state courts where most judges are selected in partisan elections with few limits on campaign contributions by users of the courts. The process of confirming federal judges has become so partisan that today 47% of the people distrust even federal judges.
Litigants who are not repeat users of civil courts have good reasons to insist on being able to submit their disputes to juries rather than judges. And it is important to the preservation of the rule of law that how those disputes are decided be visible to the public. Privatization of dispute resolution by the use of privately-hired judges in confidential arbitration proceedings threatens the development of the common law.
Furthermore, the idea of having a group of fellow citizens decide the fate of others either at the ballot box or in the jury room is the essence of American democracy. Those who serve on juries benefit as much as the litigants because jury service gives ordinary citizens a chance to collaborate with a diverse cross section of their community; teaches them how our justice system works; allows them to be part of government.
The reasons for protecting the right to trial by jury seem so compelling that it would be a mistake not to act until we know all of the reasons trials are disappearing. What the Project is proposing may not prevent the demise of jury trials in civil cases, but it certainly can’t hurt and may, cumulatively, be effective.
Steve Susman, who established The Civil Jury Project at NYU School of Law, has been trying lawsuits for almost 50 years.