Wishful thinking? Most judges refuse to believe that now-rare civil jury trials will disappear entirely

Our August question of the month asked NJC alumni, “Do you think civil jury trials are headed for extinction?” Despite the fact that juries now decide fewer than 0.5 percent of all civil filings in most jurisdictions, 71 percent of respondents said they don’t think the civil jury trial system is doomed.

“There will always be the cases where one party will say, ‘It’s the principle,’” wrote one judge anonymously, as was the case with most of the comments left.

Another said civil jury trials will continue because they’re a necessary check and balance on the government, the wealthy or anyone else a citizen believes to have inflicted negligent harm.

Reasons for the decline

If few judges chose to explain why they believe civil jury trials will live on, many agreed on why the trials have dwindled: Discovery and other trial preparation has become too expensive.

“Unless there is more realistic access to justice, the cost of taking matters to trial will continue to be cost prohibitive to all but the most affluent in our country,” wrote one judge. “I do not believe that the framers of our Constitution envisioned this, nor would they be pleased.”

Another said high costs could combine with a “growing avoidance of civic participation and distrust of institutions” to doom the format.

One way to reduce costs, a judge suggested, would be to eliminate preemptory challenges and reduce grounds for objections to evidence by liberalizing evidence rules.

Concern over consequences

Some judges said they worry that the decline in civil jury trials will harm the justice system. Fewer trials means fewer appeals, which “stunts the growth of the common law,” wrote one judge.

Another lamented, “The jury trial is … what sets our justice system apart from others. Through the jury trial, the Judicial branch provides direct citizen input to how we believe justice should be administered and laws enforced.” The same judge worried that a lawyer’s ability to present a case to a jury is becoming “a lost art.”

But Gretna (Louisiana) District Court Judge Ellen Shirer Kovach said the decline in civil jury trials may just be a consequence of the format’s own success. “It is because of the availability of civil jury trials that many cases are resolved (by other means),” she wrote. Quoting the poet John Milton, she added, “They also serve who only stand and wait.”

* Each month the College emails an informal, non-scientific, one-question survey to its more than 13,000 judicial alumni in the United States and abroad. The results summarized in the NJC’s monthly Judicial Edge are not intended to be characterized as conclusive research findings.

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