The American Interest
Policy, Politics & Culture
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A Lawyer’s Lament

Sources and solutions to save our Seventh Amendment rights.

Published on January 1, 2008

The jury trial is one of the cornerstones of the American justice system, yet today, fewer and fewer civil cases are coming before juries. The AI asked two writers—Neal Ellis, a practicing lawyer, and William Tucker, a veteran observer of the American legal profession—to explain the phenomenon.
The American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than on the criminal, but it is dying nonetheless.
—Chief Judge William G. Young

U.S. District Court for the District of

Massachusetts, March 6, 2004

At first glance, the American legal profession appears to be growing apace, for better or worse. The number of lawyers admitted to the bar, the number of judges in both our Federal and state court systems, and the number of cases filed have all increased by leaps and bounds in recent years. Indeed, politicians have so often decried the “litigation explosion” supposedly engulfing the country that the American public believes we suffer from a crisis. As a result, most Americans have no idea that the very centerpiece of our justice system is disappearing: Jury trials are vanishing at a rate that raises troubling questions about the very fabric of American political culture, not least the guarantees enshrined in the Bill of Rights.

What are the facts? The percentage of civil cases reaching trial in U.S. Federal courts dropped to 1.8 percent in 2002, compared to approximately 11 percent in 1962. Trials of criminal cases in the Federal courts dropped from 15 percent in 1962 to less than 5 percent in 2002. Given the markedly higher numbers of criminal defendants at the end of this period, the absolute number of criminal cases tried in the Federal courts decreased by 30 percent, and this has been the case for nearly all of the fifty states. Jury trials are disappearing at the state level, too. In absolute terms, jury trials in the state courts plummeted by 28 percent from 1976 to 2001.

Ironically, this decline has occurred at a time when jury trials are becoming more attractive in many countries. Others have learned lessons from the American and British historical experience, which shows that true democracy requires citizens to play a role in the justice system. For example, recent legislation in Japan has established a mixed-jury system: Beginning in May 2009 six lay people and three professional judges will fix responsibility and sentencing in serious criminal trials. States emerging from totalitarian rule—for example, Spain in 1978 and Russia in 1993—also sought to implement jury trials as a means to reform their criminal justice systems.

Most Americans are unaware of the phenomenon of vanishing jury trials in part because the legal profession has mostly kept quiet about it. The reason is fairly obvious: To say that lawyers are no longer trying many cases would be like announcing that doctors are no longer performing surgeries. Why is this happening, and what can we do about it?

Five Difficult Pieces

To some extent, the precipitous drop in jury trials in the United States defies quantification. Court administrators in many jurisdictions do not keep figures on the number of cases that would have been tried if they had not been diverted from the system for one reason or another. If numbers are difficult to come by, explanations are thankfully closer to hand. Research suggests at least five, often-interlocking reasons for the phenomenon.

First, vast numbers of cases are now resolved by nonjudicial means, especially through alternative dispute resolution (ADR) processes. These processes have produced major benefits for the justice system: Approaches to resolving disputes are often quicker, less costly and more creative. They also serve business goals, improve relationships and achieve more lasting results. Absent ADR, the courts would certainly be hard pressed to handle the growing number of new filings.

Second, the cost of litigation has risen so dramatically that many potential litigants have been priced out of the market. Embarking on litigation now requires a party to seriously consider the vast amount of time and resources that will likely be consumed in the process. Many civil trials involve battles of competing expert opinions, which drive litigation costs skyward. To ensure the most favorable jury, lawyers in high-stakes litigation also frequently employ pricey consultants to evaluate and vet jurors. Discovery now entails expensive searches of electronic databases, a process that often engenders disputes. Pretrial motions relating to discovery or disposition of claims take copious amounts of attorney time, which law firms have their own reasons for accommodating. To handle the ever-increasing amount of pretrial and trial work, more lawyers are assigned to prosecute or defend a given action.

Beyond cost in absolute terms, cost-effectiveness is also a major consideration. A RAND Corporation study on asbestos litigation suggests that only 37 cents of each dollar of litigation expenditures goes to compensate victims, while the remainder compensates lawyers and pays other transaction costs. Parties therefore naturally look for more cost-effective means to resolve their disputes.

While a significant component of litigation cost is attorney fees, clients must also consider the time they must devote to responding to discovery requests, undergoing depositions, preparing for trial and participating in it. Absent filing in a jurisdiction with a “rocket docket”—defined simply as a court which moves cases rapidly to trial—parties must evaluate the impact of delay in pursuing their cases to finality. Notwithstanding recent docket management measures, years may pass before the litigants resolve their dispute. And the trend is not encouraging. Trials commonly lasted only a day or two several decades ago; today, they often extend for weeks or even months. Civil trials taking four days or more represented 15 percent of trials in 1965 but 29 percent in 2002. Moreover, the number of very short trials shrank, while the number of very long trials increased. Because corporate managers are often personally penalized when profits drop due to litigation expenses, they have a keen incentive to resolve claims in a way that best protects the bottom line.

A third explanation for the drop in trials has to do with the enormous surge in high-stakes litigation over the past decade. Plaintiffs have resorted more frequently to class actions and other devices to “up the ante” in virtually every form of civil litigation, from consumer complaints to mass torts, securities litigation and products liability. The bundling of individual claims into class actions has also reduced the number of potential cases that may reach trial. As more defendants perceive jury trials as “rolls of the dice” likely to fall in favor of sympathetic plaintiffs, they incline to settle large claims rather than face bankruptcy. Confronting the prospect of “bet-the-company” litigation, defendant companies have been forced to allocate more resources to defend against these cases, exacerbating the already high cost of litigating claims.

Media reports of outlandish verdicts have undoubtedly influenced assessments of risk in proceeding to trial. Few of us will forget the $2.9 million jury verdict against McDonald’s in the infamous coffee-spill case. Corporate defendants deluged with media reports of out of control juries cannot help but distrust jurors to apply justice reasonably and even-handedly. Of course, many of these reports are baseless or misleading, but they do damage nonetheless: More than ever before, defendants are inclined to avoid trial and settle even negligible claims. And plaintiffs with marginal claims have been encouraged to file suit in the expectation that the defendant will crumble at the prospect of a jury trial.

Fourth, the increase in summary dispositions has helped drive the decrease in the number of trials—at least since the 1986 U.S. Supreme Court decisions in Matsushita Electrical Industrial Co. v. Zenith Radio Corp., Anderson v. Liberty Lobby, Inc., and Celotex Corp. v. Catrett, all of which encouraged the use of summary judgment. Courts are now much more likely to grant dispositive motions in cases that would likely have gone to trial in earlier times. The Supreme Court’s 2006 decision in Bell Atlantic Corp. v. Twombly raised the bar higher for plaintiffs seeking to survive motions to dismiss. Further, cases are now sometimes resolved in “paper trials” in which judges rely on affidavits and documents to decide disputes that might have been developed on the merits more fully at trial.

In fact, Congress has passed legislation that, in some contexts, requires courts to summarily dispose of claims that fail to meet elevated pleading requirements. With the passage of the Class Action Fairness Act in 2005 and the Lawsuit Abuse Reduction Act (which passed the House of Representatives but died in the Senate in 2006), legislative efforts are clearly promoting procedural devices to resolve cases in the most efficient manner possible. However, one must ask whether the frequent use of these devices sacrifices the traditional values of our justice system by hindering jury trials. No one would suggest that frivolous claims should survive an attack by dispositive motion, but the over-application of summary disposition rules may already have intruded on the right to a jury trial in violation of the spirit, if not the letter, of the Seventh Amendment.

Fifth and finally, changes in the procedural rules and the growing emphasis on managing dockets have forced judges into the role of case supervisors. As caseloads have increased during the last few decades, and as concern has grown about the lengthy time between filing and disposition, docket clearance rates, and other management statistics, judges and court administrators found ways to divert cases from trial. Since the 1960s, presiding judges have been required to monitor closely the management of cases throughout pretrial proceedings in order to ensure movement toward ultimate resolution. Many judges now strongly encourage parties to mediate and resolve disputes rather than have people with no knowledge of the case resolve it for them in an unpredictable fashion. Increased judicial involvement in pretrial proceedings, the setting of firm trial dates, and diverting cases into ADR programs have all become popular techniques to administer trial dockets. With all of the pressures to manage their caseloads, judges may now view their role more as resolvers of cases than as adjudicators of them.

Jury Fears and Fixes

The underlying source of the problem has been the parties’ growing fear that a jury’s verdict will be based on something other than thorough consideration and comprehension of the evidence. Trials in complex cases frequently involve evidence that is difficult for fact-finders to comprehend or recall. Lengthy trials test the endurance of even the most attentive jurors, who may react unfavorably to the party they perceive as being responsible for prolonging the proceedings. Juror patience can be sorely tested when minimal juror compensation causes financial and other hardship. Defendants also worry that unsophisticated jurors bent on punishing corporate America will award massive verdicts to sympathetic plaintiffs; that skilled plaintiffs attorneys will play the “emotion card” to win a runaway verdict.

Some judges may also be using procedural devices to dispose of trial-worthy cases summarily because they lack confidence in jurors’ ability to understand and assimilate the complex technical evidence needed to arrive at a verdict. These devices include forcefully managing the case, exploiting uncertainty, deciding class action issues, and excluding scientific and technical evidence.

Fears of irrational juries are not sustained by the evidence, however. Expert studies show that juries are neither gullible nor lazy. With statistically negligible exceptions, jurors diligently try to do the right thing. They spend the time reconstructing critical events by pooling their evaluations of conflicting testimony. They understand that experts are paid by the parties and scrutinize carefully their credentials and opinions. Although technical evidence is sometimes difficult for jurors to comprehend, it is just as challenging to lawyers and judges. Studies repeatedly show that contentions about juror incompetence and irresponsibility in evaluating expert and other technical evidence are simply unsupported. Juries generally refrain from tagging large corporations with huge monetary awards, and often identify points that even lawyers miss. In the jury room, they pay close attention to the evidence adduced on critical issues. Even when instructions are delivered in obscure language, jurors do their best to apply the law to the facts.

Apparently, none of this evidence has prevailed upon litigators or the courts, who have assiduously attempted to avoid trials. The trend suggests that they have been successful. A new and insidious culture is beginning to pervade the courts, one which holds that trying cases represents a failure of the judicial system—the notion, as Judith Resnik has cleverly put it, of the trial as error. With an ever-increasing emphasis on efficiency in resolving claims, our courts now seem more focused on processing and terminating disputes than on reaching a just result.

If this is so, we have sacrificed some of the core values of our justice system at the altar of efficiency. After all, the Seventh Amendment’s guarantee of the right to trial by jury lies at the heart of the American justice system. If cases that ordinarily would have proceeded to trial are now summarily disposed of by the courts, then the people’s confidence in justice will ultimately suffer. As New York University Law School professor Arthur R. Miller suggests, a commitment to “getting it right” seems to be giving way with to “getting it over with.”

The impact of the vanishing trial on the trial bar has been obvious. Fewer lawyers are trying cases, and those with substantial trial experience are finding their courtroom skills atrophying. Clients suffer from their inexperienced lawyers’ poor advice about the risks and benefits of proceeding to trial. Some clients are paying a lot more, or accepting a lot less, to settle a case than they would have if a lawyer well-honed by trial experience had evaluated the case.

Vanishing trials have also reduced judges’ preparedness to handle them. The number of judges has increased, and the number of trials has decreased, so one may deduce that our judiciary is not spending as much time trying cases as it has in the past. In 1962, a Federal district judge averaged 39 trials a year (18.2 criminal and 20.8 civil); by 2002, those numbers had dropped to 13.2 trials (5.8 criminal and 7.4 civil). The Federal Judicial Center reports that in 2002 Federal district judges spent on average fewer than 300 hours per year in trial.

What, then, can we do to preserve one of our country’s most sacred institutions? We can begin by removing the process distortions and dispelling the rumors that have made litigants, defense counsel and judges wary of jury trials. Indeed, a good start has been made by the legal profession itself.

In December 2003, the ABA’s Litigation Section held a Symposium on the Vanishing Trial, which was attended by academics, trial lawyers and judges. During his year as president-elect of the American Bar Association (ABA) in 2003–04, Robert J. Grey, Jr. announced that he would focus his attention on the importance of juries and jury trials. As he began his term, Grey formed a working group of lawyers, judges, academics and former jurors known as the American Jury Project to develop a set of principles governing juries and jury trials. At the ABA Midyear Meeting in February 2005, the House of Delegates adopted the new ABA Principles for Juries and Jury Trials by a nearly unanimous vote.

Grey’s initiative has been directed at taking the “fear” out of the jury trial system and putting the “fair” back into it. The ABA Principles seek to restore trust on both sides of the jury box. For jurors, the Principles seek to ensure adequate compensation, privacy and respect for their time. For parties, they seek to ensure that jurors will have the tools necessary to assess the evidence and reach even-handed justice. For judges, they help the jury to fulfill its role as the ultimate decision-maker, freeing them to focus on managing the trial. The Principles favor neither plaintiffs nor defendants. The emphasis is simply on getting it right.

This is not the place for a detailed examination of the ABA Principles, but it is worth noting some of their more innovative aspects. They would permit jurors to take written notes, to question witnesses in writing at the discretion of the judge, to discuss evidence in the jury room before the trial is over, and to make only unanimous verdicts. The Principles would also eliminate all automatic excuses and exemptions from jury service to ensure more representative jury pools, and they would strongly encourage judges to explain the law in plain English not only at the end of the trial but during it, as well.

After the work of the American Jury Project was completed in 2005, the ABA created the Commission on the American Jury Project to advance the implementation of the Principles by working with courts, rule-making bodies, state legislatures and the organized bar. In the two years since adoption of the Principles by the ABA’s House of Delegates, the Association’s Commission on the American Jury Project has made substantial strides in encouraging Federal and state courts to implement the principles. To take just one example, the Seventh Circuit Bar Association has established the Seventh Circuit Jury Commission, which is testing the procedural innovations recommended by the Principles. And the National Center for State Courts, the Council for Court Excellence and the Trial Court Leadership Center of Maricopa County (Phoenix, Arizona) have collaborated to help state courts implement jury trial innovations such as the ABA’s Principles. In an effort to document the use of innovative jury selection and trial practices in the state courts, the National Center for State Courts has recently conducted a “State-of-the-States Survey of Jury Improvement Efforts.”

The ABA Principles for Juries and Jury Trials attempt to arm jurors with the tools they need to comprehend better the evidence at trial and apply the law to it. They ensure the thoroughness of the deliberative process and the representativeness of juries. As such, they are a strong step in the direction of restoring confidence in the jury trial and our justice system.

However, efforts to improve jury trial processes do not address all of the causes for the diminishing number of trials. The cost of litigation continues to rise rapidly, and there is little reason to believe that legal fees will decrease anytime soon. Courts will continue to rely on mediation and other means of ADR to divert cases away from trials. Recent Supreme Court decisions suggest that the Federal courts, at least, will seek ways to dispose summarily of cases that lack merit and relieve the pressures of an ever-growing docket. Some of the problems also appear to be structural in nature. Advances in forensic technology have put a very expensive premium on expert testimony, with far greater sophistication in the social psychological manipulation of jury pools and juries themselves, and with the economic structure of large law firms.

We are not helpless before these challenges. Client limitations on burgeoning litigation fees are not out of the question. Nor are some constraints on the wide latitude lawyers enjoy to interrogate potential jurors. While this is admittedly controversial, some courts have taken the lawyers out of the juror interrogation process altogether. The wisdom of the jury system is not obsolete. Rather, we are challenged to protect and preserve our constitutional rights, particularly the right to jury trial, against erosion from the strong currents of technological and social change. It is a challenge we must meet.

Neal Ellis is a partner in the Raleigh, North Carolina office of Hunton & Williams LLP. He serves on the ABA’s Tort Trial and Insurance Practice Section Council and is a member of the ABA’s American Jury Project.