By Dr. Ken Broda Bahm:
With only a miserly share of current cases ending up in a jury trial, the story on the state of the American jury is definitely a tale of dread, but also one that still has a little light at the end if the right changes could yet be made. Given that the Holidays are upon us, that mixture of terror and hope might remind us of A Christmas Carol, with its message to Ebenezer Scrooge, and all of us, that our “courses will foreshadow certain ends…but if the courses be departed from, the ends will change.”
In a forum that is more academic and less literary, two professors (Diamond and Salerno, 2020) report on a recent survey of more than 1,400 judges and attorneys. They found, “substantial goodwill toward jury trials from judges and attorneys, yet jury trial rates have plummeted.” As a result of changes made to the system over the years, case disposition by jury trial has become, by a very wide margin, the exception rather than the rule. With fewer and fewer trials, many litigants end up lacking not only their day in court, and the rest of us also lack the power of the example and its effect on cases that don’t end up before a jury. In the Christmas classic, Scrooge escapes his dark fate by learning from and honoring the spirits of Christmas past, present, and future. Supporters of the jury system might do the same. So for this seasonal post, I’d like to look at the threats and opportunities for our jury system through that lens. With a little help from the ghost of Charles Dickens, I’d invite you visit with those three.
The Ghost of Juries Past
As Dickens might start out, the American jury is “dead as a door nail.” Maybe not quite that dead, but it is certainly a shadow of what it once was. The first spirit that visits Scrooge takes him back to his youth to show him what he was before the “humbug.” A parallel trip for the jury would involve remembering that there was a golden age when litigators routinely went to trial many times a year, and when it wasn’t unheard of for a seasoned trial lawyer to see a career with a case count in triple-digits.
Joseph Anderson, a U.S. District Court Judge in South Carolina, wrote an article several years ago entitled, “Where Have You Gone, Spot Mozingo?” The article is named for a legendary South Carolina attorney who tried more than 600 cases, before dying at the relatively young age of fifty-nine. It is safe to say that today, few lawyers can aim for even a substantial slice of that kind of experience.
Given that, it is worth asking, what was different about those times? Generally, discovery was a lot simpler and shorter. Judges had fewer ways to end a case pretrial. Legislatures hadn’t yet gotten to the task of imposing caps on damages. Companies and contracts hadn’t yet gotten around to forcing arbitration on large classes of litigants. Without those obstacles, a greater share of cases were resolved by the citizen judges envisioned in the Constitution: Juries. Trial lawyers, for their part, had the opportunity to develop better intuitions and strategic thinking through accumulated experience.
The Ghost of Juries Present
Things have changed since that golden age. Like the second spirit takes Scrooge to visit Christmas in the present day, we can take a look at what is going on with the jury. Based on Diamond and Salerno’s survey, both judges and attorneys consider juries to be less predictable, slower, and less cost effective than the other alternatives. As a result, less than one percent of all outcomes at both state and federal levels come from a jury. As juries become less common and less familiar, there is every chance those weaknesses are being magnified in the perception of lawyers and judges.
Focusing on the perceived causes, the survey respondents list several sources for the decline, including expanded motions practice and pressure from judges and from lawyers. But the main emphasis is on two culprits: damages caps and mandatory and binding arbitration. There is also what seems to be a deeply embedded perception among both judges and attorneys that litigants would rather use means other than trial.
Yet, some trials do still go on. When asked about the reasons that led to their last jury trial, the survey responses seem to show that, “the parties turned to juries in those trials to resolve precisely the types of conflicts that demand the judgment of a third-party neutral decision-maker that has the level of legitimacy commanded by a jury.” One illustrative explanation is that an attorney took the case to trial because, “There was a fundamental difference on how the parties viewed the significance of the undisputed facts.”
That reminds us that there is something unique about those trials that remain on track to be resolved by juries — they present a special challenge. To me, that makes jury trials as fascinating, or even more so, in this current time of scarcity.
The Ghost of Juries Yet to Come
So where does the American jury go from here? Do they face the fate that the final spirit showed to Ebenezer Scrooge, with their demise being ignored, or even celebrated? Or can they, like Scrooge, realize that they still have time to turn things around?
From the survey, it is important to note that the Jury still ranks higher than all alternatives but mediation in terms of perceived fairness. The jury is also second only to mediation as a preferred form of resolution for both judges and attorneys. Critically, all groups also said jury trials are worth the costs associated with them.
That leads the authors to advise, “If jury trials are indeed worth protecting, steps need to be taken to eliminate or modify the features responsible for the recent drop in jury trials.” That means asking judges, legislatures, and litigants to take a fresh look at barriers to trial, including blanket damages caps and mandatory binding arbitration. I think it is also worth noting that the jury system, like Marley, “wears the chains it forged in life,” in the sense that making trials more cumbersome and expensive by drawing out the discovery process, “link by link, and yard by yard,” has not always served the interests of justice.
Projects like NYU’s Civil Jury Project have looked at these and many other ideas for promoting the increased vigor and spirit of the American jury trial. While the coronavirus has put a general pause on this aspect of the system, it will pass. When it does, it will be up to all of us to, as Dickens would say, “honor juries in our hearts and try to keep it all the year,” so that the Tiny Tim of the remaining trials shall not perish, and the more general welfare of jury trials will be our common concern.
We have missed a lot of things during this pandemic. But the ways we have missed the jury has amounted to just an acute illustration of the more chronic problem, and how we have been missing it generally for many years. There is still time to bring it back. And, “God bless us, every one.”
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Other Christmas Posts:
Diamond, S. S. & Salerno, J. M. (2020). Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges. Louisiana Law Review 81:1. Available at: https://digitalcommons.law.lsu.edu/lalrev/vol81/iss1/9