This article was first published in the Texas Bar Journal‘s December 2013 issue. — Ed.
“The steady erosion of the American trial is our dirty little secret.”
The steady erosion of the American trial is our dirty little secret. A majority of the American public might be surprised to learn that there is indisputable statistical evidence that the number of jury and non-jury trials in our country is, and has been, sharply declining, both in absolute and relative terms.1 For example, in 2010, only 2,154 jury trials were commenced in federal district courts, which means, on average, Article III judges tried fewer than four civil jury trials that year. While jury trials in federal court obviously have declined, the decline in bench trials has been steadier and steeper.2 Even though the number of lawyers continues to increase, the number of trials is still decreasing.3
Nor is the decline in the number of cases tried due to a reduction in case filings. To the contrary, both civil case filings and dispositions actually have increased five-fold in the federal courts during the same time that the number of trials—both the rate of trials as well as the absolute number—has diminished substantially.4
Historically, Texas state courts have had a similar experience. For instance, from 1986 to 2008, civil jury trials in Texas state courts fell by 60 percent.5 Remarkably, this past year, only 0.4 percent of civil cases were resolved by a jury or a directed verdict in Texas courts, an amount lower than the national average.6
What do these trends portend for the future? They mean that, despite its historical importance and value, we are slowly but surely losing one of our most precious institutions—a trial by jury or even any trial at all. James Madison, the drafter of the Seventh Amendment, would be puzzled by how we allowed this to happen, given his view 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.”7
The Importance of the Jury
It is difficult to argue against the value of a jury. Typically, a jury’s decision reflects community values in the resolution of issues, “such as whether a party’s actions were reasonable, whether a product’s social utility exceeds its risk, … whether a breach of contract should be excused, or whether a police officer’s use of force was excessive.”8 Moreover, the shared decision-making responsibility and freedom from individual repercussions permit jurors to make difficult and sometimes unpopular decisions that would be politically perilous for other governmental participants, particularly elected judges.
“The jury trial, with all of its faults, is democracy and self-governance in action.”
Jurors bring many qualities that make them truly representative of the conscience of the community to the decision-making process: gender, ethnic, political, and philosophical diversity; a fresh perspective; collective wisdom; and a breadth of attitudes and experiences. Jurors try to do the right thing—namely, follow the court’s instructions and the evidence, and reach the correct result.
The jury trial, with all of its faults, is democracy and self-governance in action. Beyond the act of voting, jury service may be the only opportunity most citizens have to participate in any aspect of government. In a democratic society, this matters.
Finally, the jury system also provides an important forum for parties who have little or no access to private dispute resolution. Without an accessible dispute resolution system, individuals, especially poor and minority litigants, may find themselves with no practical avenue to enforce rights or redress grievances.
The Consequences of the Decline
“[T]he right to a jury trial confers important societal and individual benefits, and it is a right that should be relinquished only knowingly and voluntarily—not gradually and quietly.”
Fifth Circuit Judge Patrick E. Higginbotham described the decline of trials as one of the most significant changes in the American judicial system since the nation’s founding. He views the disappearance of trials as “a change in [the] very architecture” of our judicial system, a system for resolving disputes that, he notes, has largely remained constant for more than 200 years.9 Similarly, Texas Supreme Court Chief Justice Nathan Hecht explains, “It’s a detriment if we lose the development of the common law through cases and appeals that have been the [basis of the] rule of law in this country since its founding.”10
To be sure, some commentators have suggested that the diminution in the number of jury trials is a positive development, or even a sign of a welcome evolution to a kinder, gentler system of dispute resolution.11 Consequently, today summary judgment frequently becomes “the destination point for litigation.”12 Yet, in my view, the right to a jury trial confers important societal and individual benefits, and it is a right that should be relinquished only knowingly and voluntarily—not gradually and quietly. It is, after all, a right explicitly recognized no fewer than three times in our Constitution, one of our nation’s most sacred documents.
What Does the Future Hold?
We can look to the civil justice systems of other countries to see where we are heading if we continue on our current path. The civil jury trial is all but extinct outside the United States; they have little use for our adversarial system. Instead, those systems use legislated civil codes in place of the judicially developed common law and an inquisitorial process in place of an adversarial one.
It would be easy to dismiss the phenomenon of the vanishing trial as simply the self-interested lamentations of trial lawyers looking to preserve their way of life. But that begs the fundamental question: do we want a judicial system of the type to which we are inexorably being pushed?
“Most important, we need the public to participate in our justice system, yet we are moving in the opposite direction.”
According to professor Marc Galanter of the University of Wisconsin Law School, the decline in trials has become institutionalized:
The decline is accompanied by an ideology that explains and promotes it to judges, administrators, lawyers, clients, and policy-makers. Some of the expressions of this ideology are: that the role of judges is to manage and resolve disputes; that adjudication is only one—and not always the optimal—way to do that; that trials are expensive and wasteful; that ordinarily disputes are preferably resolved by mutual concessions; that settlement benefits parties and the courts themselves; that outsourcing disputes to ADR institutions benefits courts without detriment to parties; and so forth.13
One thing is clear—our judicial system is being reshaped. If we have fewer trials, for example, we may need fewer trial judges and courtrooms. If we have fewer trials, we will have fewer appeals, and, therefore, we may need fewer appellate judges. Furthermore, fewer appeals mean less development of the common law and that, in turn, means diminished outcome predictability available to assist lawyers in advising clients.
Most important, we need the public to participate in our justice system, yet we are moving in the opposite direction. Juries in Texas civil district courts rendered 1,642 verdicts in 2005.14 Since then, this number has decreased by nearly 30 percent; in 2012, only 1,197 civil jury verdicts were rendered.15 Moreover, the voir dire examination of jury panels in civil cases in Texas has dropped as well. Between the 2004-2005 and the 2008-2009 time periods, the number of jury panels examined fell by more than 20 percent.16 Consequently, with the decrease in the number of jury trials in civil cases, we are excluding from the judicial process the very people we need—the public—to support a strong and independent judiciary, one of the fundamental underpinnings of our democracy. According to Paul D. Carrington, professor of law at Duke University, “The [jury] system has served many purposes, but its enduring purpose has been to secure a greater measure of trust in judicial institutions.”17
Judge Higginbotham strongly criticizes the direction in which we are heading: “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.”18
Even lawyer and client access to judges in federal court appears to be declining. The current state of federal courts has been described as follows by Carrington and Roger C. Cramton, the Robert S. Stevens Emeritus Professor of Law at Cornell Law School:
In lieu of trials, the district judges and their staffs tend to practice “managerial judging,” a process by which they seek, by diverse methods, to facilitate settlements and avoid the necessity of making decisions that might burden a court of appeals with the need to review their judgments. Or, if a decision on the merits must be made, to render it in the form of a summary judgment, ruling one party’s proposed evidence to be legally insufficient and hence unworthy of being heard, a procedure that spares the trial judge the need to see and hear witnesses, but still enables him or her to expound the controlling law.19
The experience of most Texas lawyers in state court is markedly different from that in federal court. For example, it is much easier to obtain access to a judge in state court. Indeed, hearings before state court judges are routine. On the other hand, in federal court, cases are regularly resolved on the papers, with few, if any, hearings before the court. In federal court, “[a] recurring complaint is that lawyers often have little or no direct contact with the judges in charge of their cases.”20 That trend is also likely to continue.
“If we continue on the current path, our judicial branch will look far different 25 years from how it does today—and we may not like what we see.”
What, if anything, can be done to reverse this trend? At the very least, the public must be made aware that it is slowly but surely losing a precious right that our Founding Fathers fought to embrace and preserve—the right to a jury trial or any trial at all. This necessarily involves a massive educational effort. Hopefully, once the public becomes aware of the steady erosion of this precious right, there will be a clamor for the current situation to be reversed. Only a major impact from outside the system is likely to alter the current trend. If we continue on the current path, our judicial branch will look far different 25 years from how it does today—and we may not like what we see.
Professor Marc Galanter, who has extensively researched this area, makes this point in “A World Without Trials?” Journal of Dispute Resolution, Volume 2006, No. 1, at 1. See also, id. at 4 (observing that decrease in jury trials from 1976 to 2002 in courts of general jurisdiction of sample in 22 states “was similar in jury trials (from 3.4 percent to 1.3 percent) and bench trials (from 5.0 percent to 2.0 percent)”). ↩
Marc Galanter and Angela Frozena, Pound Civil Justice Institute, 2011 Forum for State Appellate Judges, “The Continuing Decline of Civil Trials in American Courts,” at 3. ↩
See U.S. Department of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook 2010-2011 Edition: Lawyers 3-4 (2010) available at http://bls.gov/ oco/pdf/ocos053.pdf (noting that while the number of active attorneys is growing, alternatives to litigation—and attorneys—are increasing). ↩
Galanter, supra, note 1, at 7-8. See also, Galanter and Frozena, supra, note 2 at 26. In Harris County, for example, there are nearly 1,900 new suits filed per year for each civil district court, almost twice the number of filings in 2000. Hon. Randy Wilson, “Civil Litigation Trends in One of the Nation’s Largest Counties,” The Houston Lawyer, at 11 (July/August 2013). ↩
Nathan L. Hecht, “The Vanishing Civil Jury Trial: Trends in Texas Courts and an Uncertain Future,” 47 S. Tex. L. Rev. 163, 170 (2005), and app’x B; Texas Courts Online, District Court Summary of Jury Activity from Sept. 1, 2007 to Aug. 31, 2008, available at http://www.courts.state.tx.us/pubs/AR2008/dc/11-dc-summary-of-jury-activity-fy08.pdf. ↩
This is for the fiscal year ending Aug. 31, 2012. Compare Office of Court Administration, District Courts Activity Detail from Sept. 1, 2011, to Aug. 31, 2012, available at http://www.txcourts.gov/pubs/AR2012/dc/3-ActivityDetail.pdf. See also, Galanter and Frozena, supra, note 2 at 3 (“Jury trials also reached a new low in 2010 relative to total dispositions, at 0.73%.”). ↩
Mark W. Bennett, Judges’ Views on Vanishing Civil Trials, 88 Judicature 306, 307 (2005). To be sure, there are multiple reasons for the decline in jury trials. See generally, American College of Trial Lawyers, The “Vanishing Trial”: The College, The Profession, The Civil Justice System, (Oct. 2004) available at http://www.actl.com. ↩
Elizabeth Thornburg, Designer Trials, 2006 J. Disp. Resol. 181, 184. ↩
Patrick E. Higginbotham, “So Why Do We Call Them Trial Courts?” 55 SMU L. Rev. 1405, 1407 (2002). ↩
Michael Orey, “The Vanishing Trial,” Bus. Wk., Apr. 30, 2007. ↩
See, e.g., Joseph F. Anderson, Jr., “Where Have You Gone, Spot Mozingo? A Trial Judge’s Lament Over the Demise of the Civil Jury Trial,” 4 Fed Cts. L. Rev. 99, 109 (2010). ↩
Higginbotham, “The Present Plight of the United States District Courts,” 60 Duke L.J. 745, 746 (Dec. 2000). ↩
Galanter and Frozena, supra, note 2 at 23. ↩
This includes both directed verdicts and final judgments that were rendered following a verdict. Office of Court Administration, District Court Summary of Jury Activity from Sept. 1, 2004, to Aug. 31, 2005, 3 (2005) [hereinafter 2005 Jury Activity], available at http://www.courts.state.tx.us/pubs/AR2005/dc/10_District_Summary_of_Jury_Activity_FY_2005.pdf. ↩
Compare Office of Court Administration, District Courts Activity Detail from Sept. 1, 2011, to Aug. 31, 2012, available at http://www.txcourts.gov/pubs/ AR2012/dc/3-ActivityDetail.pdf. ↩
Compare 2005 Jury Activity, supra, note 15; Office of Court Administration, District Court Summary of Jury Activity from Sept. 1, 2005, to Aug. 31, 2006, available at http://www.courts.state.tx.us/pubs/AR2006/dc/11-dc-summary-of-jury-activity-fy06.pdf; Office of Court Administration, District Court Summary of Jury Activity from Sept. 1, 2006, to Aug. 31, 2007, available at http://www.courts.state.tx.us/pubs/AR2007/dc/11-dc-summary-of-jury-activity-fy07.pdf; and Office of Court Administration, District Court Summary of Jury Activity from Sept. 1, 2007, to Aug. 31, 2008, available at http://www.courts.state.tx.us/pubs/AR2008/dc/11-dc-summary-of-jury-activity-fy08.pdf; 2009 Jury Activity, supra, note 15. ↩
Paul D. Carrington, “The Civil Jury and American Democracy,” 13 Duke J. Comp. & Int’l L. 79, 93 (2003). ↩
Patrick E. Higginbotham, “So Why Do We Call Them Trial Courts?” 55 SMU L. Rev. 1405, 1423 (2002). ↩
Paul D. Carrington and Roger C. Cramton, “Judicial Independence in Excess: Receiving the Judicial Duty of the Supreme Court,” 94 Cornell L. Rev. 587, 627-28 (2009). ↩
Stephen S. Gensler and Hon. Lee H. Rosenthal, “The Reappearing Judge,” 61 Kansas L. Rev. 849 (2013). The authors suggest various ways in which judges may “reappear” and become more visible to lawyers and their clients, such as holding “live” Rule 16 case management conferences and pre-motion discovery and summary judgment conferences. ↩