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.


Do you know what to do when a self-represented litigant appears in your courtroom?

Self-representation has increased exponentially. Self-represented litigants (SRLs) now appear on court dockets in almost every case possible, including civil, criminal, felony, domestic relations, traffic, misdemeanor, small claims, probate and administrative cases. Best Practices in Handling Cases with Self-Represented Litigants will help you: recognize when an indigent self-represented party may be entitled to court-appointed counsel; move a self-represented party civil docket expeditiously; use settlement techniques in cases involving SRLs; recognize the limits on assisting self-represented parties; and apply innovative methods and strategies to ensure that these litigants have proper access to the justice system.

Offered October 8–11, 2018, in Reno, NV

Click here for more information and to register.

Jury and lawyer in courtroom

NJC News
Washington DC Supreme Court facade equal justice under the law
Almost all judges believe Supreme Court justices should be subject to an ethics code

It’s safe to say that judges think their brethren and sistren on the U.S. Supreme Court should be bound b...

Remembering Lee Sinclair

Photo courtesy of The Repository Lee Sinclair recalled that as a child he loved to visit the Stark Count...

Remembering Dean Larry Hyde

Judge Laurance M. “Larry” Hyde, the dean who established The National Judicial College on the campu...

Interior of cell block in abandoned State Correctional Institution, or jail., common room with jail cells.
Poll suggests that judges know what life is like in their jails and prisons

Judges who send people to jail or prison usually have at least some idea of the conditions in the facilitie...

Judicial Heroes and Legends: May 2022 - Hon. Constance Baker Motley

When Ketanji Brown Jackson was nominated to become the first Black woman justice of the U.S. Supreme Co...

View All News

Download a PDF of our complete 2022 course catalog

Download