The Florida Bar recently released the results (pdf warning) of its research into the declining number of jury trials in America. It is a phenomenon which is affecting both civil and criminal jury trials, for somewhat different reasons. I’m only going to discuss the findings as to civil trials, as that is more relevant to this site. While the causes cited in the study for this decline in jury trials are mostly based on assumption and speculation, my own experience leads me to believe that they are probably accurate. The danger presented, especially in civil cases, is that the number of jury trials will continue to shrink unless some type of corrective action is taken. The threat of the jury trial is only viable as long as there are lawyers both able and willing to carry it out. As this threat diminishes, so too does a plaintiff’s ability to achieve any sort of justice.
The Shrinking Number of Jury Trials
The bar’s study used data gathered regarding the percentage of civil cases which proceeded to trial in both federal and state court over a number of decades. In federal court, they examined nationwide data from 1960 through 2002. It revealed the following:
In 1962, there were 50,320 civil dispositions and 11.5% (5,802) of those dispositions were by trial. In 2002, there were 258,876 civil dispositions, but only 1.8% (4,569) of those dispositions were by trial.
In state courts, the numbers were not much better:
As to civil cases, in 1976 there were a total of 528,567 trials out of 1,464,258 total dispositions. This number represents 36.1% of the total dispositions. By 2002, there were 487,200 trials out of 3,087,857 total civil dispositions. This number represents 15.8% of the total dispositions. These numbers include both bench and jury trials, with the majority of trials in state courts being bench trials rather than jury trials.
So what happened over this time period that would cause such a drastic reduction in trials?
Likely Causes for Fewer Jury Trials
The study cited several possible reasons for the reduced number of civil cases going to trial:
- The rise of alternative dispute resolution (ADR) mechanisms, such as mediation and arbitration, which is, for the most part, a good thing.
- The increase in the cost of going to trial, including the costs immediately leading up to trial. These include expert witness fees and discovery costs. I can personally vouch for this, as I was once held hostage by my own expert witness (a GI doctor), who wanted a non-refundable $5,000.00 retainer to be available for a 3 hour period on the first day of trial.
- The increased delays in bringing a case to trial, due mostly to underfunded and overburdened court systems. When a plaintiff has to wait years for a trial date, the incentive to settle increases substantially.
One alarming fact noted by the study (though not identified by them as a cause of fewer trials currently) is that as the number of jury trials declines, so, too, does the number of lawyers who have trial experience. Therefore, we face a snowballing problem, as the current and next generation of lawyers avoid trials because they don’t know how to conduct them, and thereby create fewer trials and fewer “trial-ready” lawyers over time. I guess the only comforting fact for plaintiffs is that equal numbers of plaintiff and defense lawyers will be scared to death to go to trial because they will all be equally inexperienced.
Possible Solutions to the Growing Jury Trial Crisis
To combat the “trial experience gap” new lawyers now face, the bar suggests implementing and expanding mentoring programs, trial clinics in law school, and internships. I don’t know how much this will help, as any trial training given in law school will likely be forgotten by the time most new lawyers are ready to try their first cases. Also, having a mentor assigned by the bar so you can watch him try a case is a far cry from preparing for and trying a case yourself. Also, combating the rise of inexperienced trial lawyers without increasing the availability and affordability of trials won’t do much good for real life plaintiffs. Even if your lawyer is ready, willing and able to try your case, it may be far too expensive and take far too long to get a trial date to make it a reasonable possibility.
The best suggestion made by this study is “full funding” of our trial courts. As court budgets get slashed, dockets get backed up. Courts which have a reasonable number of judges and support staff relative to their caseloads could make a world of difference. Imagine how nice it would be if you could be assured of getting a trial date within a year of filing your complaint. Imagine discovery disputes and motions being handled in a timely and efficient manner, instead of taking months to resolve. Slow cases work to the advantage of the defense (they get to hold on to their money longer), as the plaintiff may not be able to pay her bills or get needed medical treatment without settling her case. Fast cases work to the advantage of the plaintiff, as nothing motivates a defendant to settle more than a looming trial date (and the enormous number of hours its attorneys will bill as a result of that).
Without something being done to reverse this decline in the number of jury trials, I have a feeling that it is going to become increasingly more difficult for personal injury plaintiffs to get any kind of justice. I’m open to any suggestions. . .