Bring Back the “Vanishing” Jury continued

The reasons for the decline in civil jury trials may range from well-intentioned procedures like mandatory arbitration to pressures from judicial cost cutting. With two other faculty members besides Steve, the Civil Jury Project also will examine suggested remedies like allowing non-unanimous verdicts, letting jurors ask questions, and making trials shorter.

This September the project held the first of a projected series of annual conferences, with contributions from Steve, now an adjunct professor teaching a course called “How to Try a Jury Case Intelligently,” lawyers, professors and Democratic Senator Sheldon Whitehouse of Rhode Island.

Now based in New York City, Steve is still in practice. For a 10-minute interview including how he works in taxis and his approach to recruiting for his firm, click here. He also continues to collect art, spoil grandchildren and ride bicycle races for charity – and to co-chair the two-year-old Save Our Juries project which in addition to producing public service videos, argues that civil jury trials are important for progressive causes like racial integration and environmental safety.

Below is a brief paper sent by Steve on the problems and potential reforms in civil jury trials that will be researched by the new Civil Jury Project.

The “Vanishing” Civil Jury:
What to Do

civiljury

The Seventh Amendment to the U.S. Constitution and provisions of most state constitutions guarantee citizens the right of trial by jury in common-law civil cases. But it is beyond dispute that the civil jury trial is a vanishing feature of the American legal landscape. In 1962, juries resolved 5.5 percent of federal civil cases; since 2005, the rate has been below 1 percent. In 1997, there were 3,369 civil jury trials in Texas state courts; in 2012, even as the number of lawsuits had risen substantially, there were fewer than 1,200. Similar trends are evident in states across the nation.

What are the causes of the civil jury trial’s near extinction? What are the consequences-for the legal system and society more broadly? And for those who advocate preserving and revitalizing the civil jury trial, what steps might be taken? These will be the core areas of inquiry for the new Civil Jury Project at NYU School of Law.

A. The Civil Jury Project will engage in three primary areas of activity.

  1. The Project will undertake an empirical assessment of the current role of the jury in our civil justice system, the reasons for its decline, and the impact of that decline on the functioning of the civil justice system overall.  The basic question is whether jury trials continue to serve the role anticipated by the Framers of the Constitution. Relatedly, it is important to examine the consequences of the decline and what institutions currently fill the void.
  2. The Project will create education programs and publicity outlets for studies and policy proposals on the jury trial.
  3. The Project will re-evaluate ways in which juries are constituted and jury trials are conducted. The question is not simply whether there should be a right to trial by jury, but how that right can be exercised consistent with basic commitments to speedy and efficient resolution of civil disputes.

B. Current controversies over trial by jury

  1. 1. Historically, the greatest number of disputes at law have emerged from contract cases. While arbitration clauses in standard-form contracts severely constrict the availability of jury trial rights, empirical evidence is needed to establish the relation between mandatory arbitration, other dispute resolution systems, and the rate of jury trials.
  2. Other possible reasons cited for the decline include heightened pleading requirements, case law encouraging summary adjudication, and budgetary constraints faced by court systems.  Indeed, there is a concern that courts are adopting various pretrial doctrines out of concern that a jury trial would be unfair to a disfavored party, presumably the defendant.  Here, too, there is a need for more empirical evidence to examine cause and effect.
  3. There has been little rigorous scholarship on the consequences of the demise of the jury trial. Among issues worthy of examination are the effects of the decline on the development of the common law (fewer trials mean fewer appeals); a shared sense of civic engagement; the value of group deliberation and fact finding; and the substantive outcomes of disputes (in particular for matters where punitive damages are sought).

C. Education and publicity

  1. The Civil Jury Project does not aim to be simply an exercise in academic examination. To the contrary, a central goal will be engagement of students, lawyers, judges, policy makers, and the public at large to inform them about the empirical facts and legal issues relating to the role of the civil jury.
  2. In addition to sponsoring and publishing academic research on the topic, the Project will prepare materials for a variety of audiences. It will disseminate research and policy proposals through a variety of media platforms, including a dedicated web and social media presence.
  3. Through an annual conference and other events, the Project will foster discussion with relevant stakeholders.
  4. The Project will also develop CLE programs and law school trial-advocacy courses on civil jury trials.

D. Improving the civil jury trial

  1. Critics of trials say they have become protracted and expensive, and that juries generally lack the expertise needed for complex topics, such as intellectual property disputes.
  2. Drawing heavily on input from judges and trial lawyers (defense and plaintiffs’ side) the Project will examine a range of suggestions that have been made to improve jury trials (plain-English jury instructions given at the start of the case; non-unanimous verdicts; jury note-taking; allowing jury questions, for example) and consider others.
  3. A particular focus will be on ideas for making jury trials shorter, and what the effect of that would be on pre-trial discovery costs, the quality of juries and the jury experience, and the fairness of trial results.

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