Observers around the country have been describing the disappearance of the civil jury trial for quite some time. In recent years, fewer than two percent of federal actions have gone to trial and less than one percent were heard by a jury. And while the trend was first spotted in federal courts, it has spread to state trial courts as well.
Last Friday, a group of more than two dozen panelists at the American Constitution Society’s annual convention agreed that jury trials in civil cases, especially in the federal courts, are on the decline. The panelists cited several reasons for the decline: a shift to using arbitration, the rising cost of taking cases to trial and the growing number of young attorneys who are never trained on how to handle a trial.
Numerous panelists, including friends of this firm, explained the problems associated with the current trend away from jury trials (and toward arbitration). For example, F. Paul Bland Jr., a senior attorney at Public Justice, stated that the shift to arbitration means that more cases simply disappear and never even make it as far as an arbitrator. Likewise, Barbara Hart of Lowey Dannenberg Cohen & Hart, commented that jury trials in civil cases are important to keep the public informed: “What we lose in arbitration is the sunshine….” Nathan Finch, an attorney with the law firm Motley Rice, noted that one thing limiting the number of jury trials is the increasing difficulty and expense to make it past the summary judgment phase. Finally, Christine Azar of Labaton Sucharow pointed out that “the entire profession loses” due to the decline in jury trials — because a whole generation of lawyers (and judges) is being trained without trial experience.
“Juries, above all civil juries, help every citizen to share something of the deliberations that go on in the judge’s mind and it is these very deliberations which best prepare the people to be free.” ~ Alex de Tocqueville, Democracy in America
These are serious concerns facing both our justice system and the legal profession. Indeed, as Ms. Hart mentioned, the confidentiality agreements that result from settlements often enable bad actors to continue their unlawful practices. Likewise, to add to Mr. Bland’s comments about forced arbitration, contracts requiring arbitration are written by large corporations with overwhelming bargaining power who know that it is in their best interests to compel arbitration instead of leaving their fate to juries, which are harder for them to control. Moreover, as noted by Mr. Finch, summary judgment motions – where the judge “decides” the case before it gets to trial – used to be reserved for the exceptional case where no genuine dispute of material fact could be found, and courts gave sufficient deference to the rule that requires disputed evidence of fact to be decided by a jury. That seems to be changing. In some ways, today’s civil justice system seems to value efficiency over fairness. Getting cases resolved is more important than getting them fully and fairly adjudicated by a jury of the parties’ peers.
The disappearance of civil jury trials affects more than just the individual cases that fail to be heard by a jury; it has an impact on society at large. Other than voting, serving as a member of a jury might be the closest most citizens come to actually participating in their government. And most people experience their only direct interaction with the court system when they serve as a juror. That experience is not only vital to civic involvement, but arguably important to maintain the legitimacy of the court system. Indeed, when the resolution of disputes is handled behind closed doors, the transparency of the justice system is undermined and the public’s confidence in the integrity of our judicial process becomes a matter of faith. But that faith becomes tested because, in effect, the disappearance of the civil jury trial further removes the general public from the legal process, thereby eroding public confidence in our system.
Juries embody the collective wisdom and objectivity of a group of people called to apply their common sense and decide a dispute in the context of applicable law. They are central to our system of justice and, arguably, our way of life. Their continued disappearance is a shame.