The Disappearing Jury Trial

Today's Wall Street Journal Law Blog has a post by Peter Lattman about the disappearing jury trial in the US justice system.

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.

—Judge William Young, U.S. District Court for the District of Massachusetts, March 6, 2004

That’s the epigraph of an essay in the American Interest by Neal Ellis, a lawyer at Hunton & Williams in Raleigh. Ellis thinks our legal culture has come to view trying cases as a failure of the judicial system rather than as its cornerstone. Here’s the evidence: Fewer than 2% of civil cases went to trial in 2002, down from 11% 40 years earlier.

While he praises alternative dispute resolution like mediation, he raises concerns over several reasons why jury trials are dwindling. Among them: Rising litigation costs deter potential plaintiffs and encourage the settlement of even negligible claims. Also: The growing fear — which Ellis says is unfounded — that jurors are too unsophisticated and too easily swayed by emotion to render fair verdicts in increasingly complex cases.

Among his suggestions for filling up more jury boxes: capping lawyers’ fees on cases and restricting lawyers’ ability to question potential jurors, which in his view would deepen the jury pool. Without reform, he warns, Americans’ confidence in the judicial system, including the Constitution’s right to a trial by jury, will be dangerously undermined.

Source WLJ Law Blog December 20, 2007