Are jury trials dying? Should we let them?

Trial by jury occupies an almost mythical place in American culture.  Depictions of the jury are pervasive in pop culture.  Juries have played star roles in prime-time TV series, movies, and even podcasts.  While trial by jury may not be a unique feature of the American legal system, it certainly is a notable one.  However, despite the jury's exceptionalism according to popular opinion it is on the decline. An abundance of articles and blogs pronouncing the decline can be found at the Civil Jury Project website run by NYU Law School. This begs the question: are jury trials dying? Should we care?

The Numbers

When faced with the statistics, it is clear that jury trials both civil and criminal are on the decline. From 1979 to 2009, the number of criminal trials dropped drastically. Falling from around 3 percent to just above 1 percent. Civil trials dropped in similar fashion, falling from around 3.5 percent of dispositions to half a percent. Statistics sourced from a 2016 report on judicial trends. For those of you, like me, who are visual learners, Marc Galanter and Angela Frozena have some excellent graphs showing the decline in their 2011 report.

Reasons for the Decline 

There are many reasons for the decline. Below, I list a few of the main reasons.

(1) Cost. A major consideration of avoiding trial for both parties is cost. Primarily in the context of civil trials, parties are wary to take on the enormous cost that a trial entails. Trials can span days, some even spanning months. The fees associated with trials (attorney fees, expert witness fees, etc.) only increase as trials drag on. Thus, economic reasons undoubtedly play into the reduction of jury trials.   

(2) Alternative Dispute Resolution (ADR) Methods. Many parties are choosing to avoid the courtroom altogether. Many contracts now provide for compulsory arbitration or mediation. Arbitration, where the parties agree to be bound by the decision of the arbitrator, has increased in popularity over the past decade. Parties are drawn by the promise of a speedier and cheaper process. Mediation, a voluntary process, can help parties avoid litigation and explore settlement options. Both forms of ADR have decreased the occurrence of trials in civil litigation. For a nice summary of dispute resolution options, visit the ABA dispute resolution page.

A somewhat related point is the pervasiveness of plea bargains in criminal cases. The vast majority of both state and federal criminal cases result in plea bargains. A New York Times article, states that 97 percent of federal criminal cases and 94 percent of state criminal cases end in plea bargains. It appears that more often than not a defendant does not have his or her day in court.

(3) Perceived Uncertainty. Stakeholders in both criminal cases and civil cases perceive jury trials to be somewhat of a gamble. Risk averse parties may avoid a trial to avoid the worst possible outcome. 

Why it matters?

Should we care that juries are becoming even more of a rarity? Yes. At a time when some Americans find themselves questioning government institutions, and the country is mired in bipartisan vitriol, juries operate as the ultimate safety value. Jury service is the chance for every day Americans to ensure that justice is applied equally. It is an opportunity to take part in the legal system to make sure the voice of the community is heard. This is a special task. One that Americans are fully capable and competent to perform.