A group of panelists at the American Constitution Society's annual convention agreed that jury trials in civil cases, especially in the federal courts, are on the decline. But they disagreed about whether that was a bad thing and how the trend could be reversed.
The panel on Friday was moderated by New York University School of Law Professor Arthur Miller. He cited statistics from the Administrative Office of the U.S. Courts that, in recent years, fewer than 2 percent of federal actions went to trial and fewer than 1 percent had a jury trial.
The more than two dozen panelists cited several reasons for the decline: a shift to using arbitration, the rising cost of taking cases to trial and the growing number of young attorneys who are never trained on how to handle a trial.
John Vail, vice president and senior litigation counsel at the Center for Constitutional Litigation, said jury trials can work in civil cases, and that the responsibility falls to attorneys to do a better job of explaining their cases. Miller asked him why it wouldn't be preferable to have judges decide cases where they have expertise; Vail replied that the virtue of juries is that they don't have preconceptions about certain issues, unlike judges.
F. Paul Bland Jr., a senior attorney at Public Justice, said he thought the problem was that the shift to arbitration meant that more cases – he spoke about consumer cases – simply disappeared and never make it as far as an arbitrator. Mayer Brown partner Andrew Pincus countered that in some instances, cases don't make it to arbitration because the plaintiff's claim is satisfied right away.
Barbara Hart, chief operating officer and securities litigation practice head at Lowey Dannenberg Cohen & Hart, said that jury trials in civil cases are important to keep the public informed. "What we lose in arbitration is the sunshine," she said.
The jury selection process was cited as another reason why attorneys in civil cases are moving away from trials. Josh Dubin, who runs legal strategy consulting company Dubin Research and Consulting Inc., said judges aren't allowing enough time for voir dire, which hurts the faith of lawyers and their corporate clients in the process.
David Brodsky, a retired partner at Latham & Watkins, said electronic discovery had pushed the costs of going to trial up over the past decade. Nathan Finch, an attorney with plaintiffs firm Motley Rice, said his clients want to go to a jury, but that it's become much more difficult and expensive to make it past the summary judgment phase.
Wiley Rein partner Andrew McBride questioned whether the 7th Amendment right to a jury trial in civil cases was as critical to democracy as the right to a trial in criminal cases. He said that expert judges could decide certain complex cases – he cited patent disputes as an example – without harming society.
His comments sparked a flurry of protests from other panelists. Bland said that arbitration put more power in the hands of the rich to control who decides the outcome of cases, while juries couldn't be bought. Salvatore Graziano, a partner at Bernstein Litowitz Berger & Grossmann, asked McBride how, as a former prosecutor, he could trust a jury to decide whether to send a person to jail for the rest of their life but not trust them to decide complex civil cases.
Regardless of the reasons, Labaton Sucharow partner Christine Azar lamented that the decline in jury trials meant that a whole generation of lawyers is being trained without any trial experience. "The entire profession loses," she said.
National Law Journal photo by Zoe Tillman.