The Seventh Amendment is fast becoming a dead letter. Although the protection remains, there simply aren’t many trials happening. Indeed, federal juries decided 5.5% of civil cases in 1962, but a paltry 0.76% in 2015. A similar trend is apparent in every state court. This is a problem. Without jury trials, the American system of civil justice—as well as our democracy in general—degenerates and loses legitimacy. Indeed, as William Blackstone recognized over two centuries ago, “Every new tribunal erected for the decision of facts, without the intervention of a jury . . . is a step towards establishing aristocracy, the most oppressive of absolute government.” The loss of civil jury trials demands, if not action, at least scrutiny.
The Civil Jury Project at New York University School of Law seeks to do both. Launched by trial attorney Stephen D. Susman in 2015, the Project aims to understand the causes and consequences of the civil jury’s dramatic decline, as well as determine what steps might be taken to preserve and revitalize the institution. It has commenced empirical assessments of the current role of the jury, created education programs and publicity outlets for studies and policy proposals, and reevaluated ways in which juries are constituted and jury trials conducted. Its efforts have earned it astounding support across the country, with a list of accomplished judicial, academic, and practitioner advisors that total well into the hundreds. Today, it remains the nation’s only non-profit academic institution dedicated to studying, preserving, and advancing the cause of the Seventh Amendment.
Of course, the Civil Jury Project is not the first to study the vanishing civil jury. Many authors have offered their explanations for the decline by focusing on a range of factors. Some argue that the emergence of new procedural barriers, such as the heightened requirements for pleading and lowered requirements for entry of summary judgments and mandatory pretrial mediation, halt meritorious cases long before they reach a jury. Others cite the rise and successes of the “tort reform” movement, which since the 1980s has prompted legislation curbing jury trial rights as well as convincing the public of a false explosion in so-called “frivolous” litigation. Finally, some authorities contend that this decline is the anticipated result of advancements in conducting liberal discovery, which has made the preservation and procurement of evidence easier and thus the fact-finding function of jury trials mostly redundant. All of these answers have their supporters and detractors.
Regardless of the reasons, most would agree that the pattern is alarming. True, the recent loss of civil jury trials is not likely to prompt a revolution as it did for America’s Founders, but the civil jury remains a politically significant institution. Indeed, Alexander Hamilton’s description of the civil jury “as a security against corruption” of judges rings just as true today as it did in the Eighteenth Century, perhaps even more so. Consider the recent intensification of judicial elections around the country, which have the potential to sway judges toward inequitable or ungrounded rulings.
Moreover, the civil jury is capable of curbing abuses by those who wield executive power to harass or seek private gain from office. To be sure, inviting the public into the courthouse is necessary in order to administer civil justice in a manner that comports with community expectations.
Recognizing the plight of our civil jury system is not enough, however. Efforts must be taken to reverse the trend and restore the civil jury to its full institutional esteem. The Civil Jury Project contends that one way to accomplish this is to raise awareness and advance an open dialogue between the bar, bench, and public. For this reason, it has initiated a social media campaign and launched an interactive website called WethePeopleWetheJury.com. These channels give citizens the opportunity to learn and converse about our civil justice system.
The Project has also been holding quarterly “Jury Improvement Lunches,” during which members of the bench and bar listen to recently-dismissed jurors discuss what they liked and disliked about their service experience. Finally, the Project is in the beginning stages of producing a video documentary exposing how the decline in civil jury trials has left many of America’s courthouses vacant. Already the responses from these efforts have shown that there is overwhelming and sincere interest in the Project’s aims.
The Civil Jury Project is also promoting jury trial revitalization through innovation. It recently published a chapter in the Texas Business Litigation treatise discussing the empirical support and legal foundation of various jury trial innovations. These innovations include: limiting the length of trials; providing jurors preliminary substantive instructions; allowing jurors to ask questions; administering pre-voir dire questionnaires; giving opening statements before voir dire; permitting interim arguments by counsel; presenting expert testimony back-to-back; and allowing jurors to discuss evidence before deliberation.
Each of these proposals would make civil jury trials quicker, less costly, and more accurate. They can also improve the experience of those serving on juries, thereby making citizens more likely to report to courthouses and serve on cases to completion. In this way, each proposal can help to stem the jury trial’s disappearance.
The media’s portrayal of a lively and perhaps overly vigorous civil justice system could not be further from the truth. For the last fifty years, civil jury trials in America have declined to the point of near extinction. As a result, civil juries are neither serving as a check on powerful social and political interests, nor fulfilling their role in what James Madison described as “a social compact [regulating] the action of the community.” Through increased efforts like those of the Civil Jury Project, however, it may be possible to preserve and improve the promise of the Seventh Amendment for future generations. That is, if it’s not too late.
Richard Loren Jolly is Research Fellow for the Civil Jury Project, New York University School of Law (see: civiljuryproject.law.nyu.edu).