Two federal judges at a recent Federal Bar Association panel offered divergent viewpoints on how courts should address the declining numbers of federal civil jury trials. Judge D. Brock Hornby of the District of Maine and Judge William Young of the District of Massachusetts spoke at a Sept. 17 program titled “The Future of the Civil Jury Trial in Federal Court.”

While Young advocated for court system changes to encourage judges to spend more time on the bench, Hornby said that outside forces, not judges, are causing the decline in the number of civil jury trials. And he isn’t convinced that’s entirely negative, since many disputes are private.

Young said judges’ average time on the bench and the money the federal court system spends on juries drops each year. He said federal judges average only about 175 hours a year presiding over various types of evidentiary hearings counted as trials in the U.S. courts’ record-keeping system. “If we spend 10% or less of our time doing what it is the public thinks we do, our system is dysfunctional,” Young said.

Young’s suggestions for boosting judges’ bench time include setting firm trial dates and rejecting requests for continuances; publishing judges’ time on the bench by district; and getting judges to conduct trials or hearings for other judges in busier districts.

“We should manage our cases to get them to trial,” Young said.

Hornby agreed that the trend of declining federal civil jury trial numbers is prolonged and pronounced. In 1962, 11.5% of federal civil cases went to trial, compared with 6.1% in 1982, 1.8% in 2002 and 1.2% in 2009, Hornby said.

But unlike Young, Hornby believes the decline is primarily driven by changes in lawyers’ and clients’ attitudes and external factors such as an upswing in international disputes.”I don’t think the decline is largely the fault of judges,” Hornby said. “Whether we care or not, I don’t think there’s much we judges or anyone else can do about it. Let’s face it, times change.”

Hornby also rejects the theory advanced by some law professors and judges that too many cases settle because of judges’ aggressive pushing of settlement conferences. “Parties and Congress all want federal judges to manage their cases; otherwise they will take too long,” Hornby said. “[And] the cases settle anyway.”

Hornby listed nine reasons why he believes the number of civil trials has declined:

• Lawyers have learned to measure which cases will be profitable.

• Clients are far more sophisticated about how they use lawyers.

• Companies are more skilled in risk management, including litigation, than they were many years ago.

• Many causes of action and the bases for liability have matured, so litigants can more easily settle sexual harassment or asbestos cases, for example.

• Congress hasn’t recently passed new laws creating liability for actions, such as the Americans With Disabilities Act of 1990. Hornby added that it’s too soon to know how the health care reform and financial reform laws will affect trial rates.

• More lawyers and law firms use alternative dispute resolution and more contracts contain clauses requiring it.

• Lawsuits are extremely expensive, partially due to electronic discovery.

• News and entertainment portray juries as irrational, unpredictable and out of control.

• Disputes are increasingly international and more amenable to international arbitration.

Hornby said cases involving allegations of police brutality, civil rights violations and safety issues that affect the public need jury trials, but many private disputes do not.”Things are not as dire [as they seem] in the decline of federal civil trials, and it’s really not reversible,” Hornby said.

Ultimately, Hornby said, judges need to respond to the societal and legal forces shaping how society uses its courts.

Disputes have to come to us,” Hornby said. “We are there to respond. We have to serve litigants and their lawyers in a way that meets their needs. As federal judges, we don’t have a roving mandate to go out and bring cases in and compel people to go to trial.”

Sheri Qualters can be contacted at squalters@alm.com.