New ABA study explains why jury trials are disappearing

As jury trials disappear from American courtrooms, independent of the pandemic, lawyers, judges and legislators should consider changing four factors that are suppressing such trials: civil damage caps, mandatory arbitration, criminal sentencing guidelines and mandatory minimum sentences.

That’s the conclusion of a four-year study released by the American Bar Association Commission on the American Jury.

The study is based on a survey of 1,460 lawyers and judges from 2016 to 2019, and results were published in the Louisiana Law Review at Louisiana State University. The article was co-authored by Shari Seidman Diamond of Northwestern University and Jessica M. Salerno of Arizona State University.

Lawyers and judges surveyed said that while jury trials are less predictable, slower and less cost-effective than alternatives, they are also fairer. By large margins, lawyers and judges said jury trials are worth the costs associated with them.

The number of jury trials has dropped so dramatically that “the jury trial is an exceptional rather than a commonplace outcome,” the report states. The percentage of federal lawsuits decided by jury trial dropped from 5.5% in 1962 to 0.8% in 2013. The percentage of federal criminal cases decided by jury trial dropped from 8.2% in 1962 to 3.6% by 2013.

According to the survey:

• Judges, prosecutors and defense attorneys all rank jury trials as fairer than bench trials.
• Judges, plaintiff attorneys and defense attorneys agree that mediation, in which the parties reserve the right to agree to a settlement, is the fairest way to resolve cases, followed by jury trials, then bench trials. All groups rank arbitration, in which the parties give power to decide a dispute to an arbitrator, as the least fair method.
• Lawyers perceive judges and mediators as major sources of pressure on plaintiffs to settle cases before trial, in addition to pressure from the litigants’ own attorneys.
• Judges believe that defense attorneys are the only source of pressure on defendants to plead guilty before trial. However, at least one-third of criminal defense attorneys also blame pressure from prosecutors, judges and defendants’ relatives. 

Related links:

• ABA Principles for Juries and Jury Trials
• Civil Jury Project at NYU School of Law
• ABA Journal: 
  • What’s lost when jury trials vanish?
  • In an era of the vanishing trial, would-be litigators aren't getting valuable experience, op-ed says
  • Criminal trials have become so scarce that federal judge had only one in his 4 years on the bench