Jury box. 2-9-11. Photo by Jason Doiy... Jason Doiy

Once upon a time, in a land far, far away, there existed trial lawyers. Every day these attorneys strode into courtrooms to represent the rights of their clients, demanding justice from a jury of their clients’ peers. They spoke to jurors about their clients’ truth, and the jurors—the conscience of the community—decided the outcome of these matters. And all was fair and just in the world.

But one day, along came the Supreme Court, and the Supreme Court said, there are more expedient ways to resolve conflicts than jury trials: Submit them to an arbitrator; decide them at summary judgment; but whatever you do, do not let a jury trial occur!

And because the Supreme Court made the law of the land, the trial lawyers began to fade from existence. Today you might see a trial lawyer hidden inside a firm, just waiting to get out. But they are far and few between and hard to spot.

Becoming a licensed lawyer in 1998, I became a trial lawyer in the age of the vanishing jury trial. Trial lawyers from the prior generation tell me that trial lawyers don’t really know how to try a case until they’ve tried 25 cases. And yet, less than 1 percent of cases are ever tried to a jury, and few, if any, of my peers will ever see 25 jury trials in their careers.

What Happened to Jury Trials?

The right to a public trial with an impartial jury is what distinguishes this country from other countries not known for their freedom. In “Federalist Paper No. 83,” Alexander Hamilton touched on the importance of trial by jury, particularly in civil cases. He wrote that the right to trial by jury is an essential safeguard to liberty, if not the “very palladium of free government.” This core principle was embodied in the Seventh Amendment to the Constitution of the United States. From the earliest days of the American civil justice system, we have valued and safeguarded the ideal of open justice in public courtrooms with a jury of our peers as a Important and intangible social benefits flow from the public trial. Trials can be about catharsis and healing. Trials can educate and enlighten. Trials can be a catalyst for change. Trials can bring the light of public scrutiny into what would otherwise be the dark corners of our social landscape.

The vanishing trial may be the most important issue facing our civil justice system today. It deserves our continued attention. An American Bar Association study found that in federal courts, the decline in trials has been steep and dramatic. In 1962, there were 5,802 civil trials in the federal courts and 5,097 criminal trials, for a total of 10,899. In 1985, total federal trials had risen to 12,529. By 2002, however, trials had dropped to 8,143 in total—4,569 civil trials and 3,574 criminal trials. Thus, our federal courts actually tried fewer cases in 2002 than they did in 1962, despite a fivefold increase in the number of civil filings and more than a doubling of the criminal filings over the same time frame. In 1962, 11.5 percent of federal civil cases were disposed of by trial. By 2002, that figure had plummeted to 1.8 percent.

The ABA Task Force on the Vanishing Jury Trial found the following reasons contribute to the diminishment of jury trials:

• The increasing use and success of alternative dispute resolution (ADR) processes.

• The increasing depth and cost of discovery.

• Delay in resolution of cases by jury trial.

• The uncertainty of jury verdicts (or the perception of such uncertainty).

• The increased filing and granting of dispositive motions, most particularly summary judgment motions.

• The lack of trial experience by both lawyers and judges (and the attendant reluctance to try cases).

Patricia Lee Refo, who chaired the ABA litigation study, said “I, for one, am a true believer in the adversary system and the jury trial in particular. The jury trial—with all of its faults—is democracy and self-governance in action. Beyond the passive act of voting, jury service may be the only opportunity most citizens have to participate in any aspect of government. The studies I’ve seen show that, on average, most jurors work very hard to do the right thing and leave their jury service feeling good about their experience and about the justice system. In a democratic society, that matters. And the cost of losing that citizen participation in government is impossible to calculate.”

To preserve our freedom, we must elevate the fight for this fundamental right. We must restore the jury system and jury trials.