Introduction

Research Objective

The decline in civil trials has been documented by empirical research and the courts alike, with data that reveal a downward trend since at least 1962. The Civil Jury Project reports that less than 1% of all cases filed were disposed of by bench or jury trial in the years 2010 through 2015.^[1]

The Civil Jury Project is engaged in an empirical assessment of the current role of the jury in our civil justice system, the reasons for its decline, and the impact of that decline on the functioning of the civil justice system overall. The basic question is whether jury trials continue to serve the role anticipated by the Framers of the Constitution. Relatedly, it is important to examine the consequences of the decline and what other institutions may currently fill the void.

To help understand the current state of civil jury trials, the American Society of Trial Consultants (ASTC), as part of the Trial Consultant Advisory Group of the NYU Law School Civil Jury Project, conducted a survey of lawyers who try cases in state and federal courts across the country.

This survey addressed the current involvement by attorneys in jury trials, how they viewed the decline in jury trials, their perceptions of the causes for this decline, their experience with jury trial innovations, and what (if anything) they thought could be done to increase the number of jury trials.

Methodology

The survey was distributed electronically by the Civil Jury Project to a dozen attorney organizations. We received responses from eight of those (shown in chart below) between May 3, 2016 and August 1, 2016.

The survey consisted of 25 multiple choice and open-ended items. Respondents were not required to answer each item, but they were given the opportunity in many instances to give multiple responses. Therefore, the number of responses for each survey item varies. We have noted in this report frequencies and/or percentages to provide clarity throughout.

Participants also had the option of providing name and contact information, which will be held confidential.

The chart on the following page summarizes the demographic make-up of our sample and highlights the range of practice areas and attorney experience.

• We received responses from attorneys in all 50 U.S. states, with the highest participation coming from Texas, California, New Jersey, Pennsylvania and Florida.
• Respondents practice in a wide variety of types of civil litigation and in law firms large and small.
• More than three-fourths (78%) are men and the average age of all respondents is 54.^[2]
• More than half (55%) have practiced 21-40 years and a quarter (25%) have up to 30 career jury trial completions.

Section One: Highlights of the Survey

Highlights of the major study findings include:

• A relatively large sample size of attorneys on both sides of the bar in a wide variety of case types nationwide.
• The majority of respondents agree that there are too few jury trials.^[3]
• The perception of major causes for the decline in jury trials for attorneys’ own cases include perceived uncertainty in jury decision- making and the cost of litigation.
• Views on the decline in jury trials, in general, include the cost of litigation (which is likely combined with time factors such as delays in getting to trial and/or the length of trials), risk of uncertain outcomes, mandatory ADR, and perceived pressure by judges to resolve cases without trial.
• Attorneys suggest ways to increase the number of jury trials by promoting greater efficiencies in the system, limiting ADR, and increased support from judges for proceeding to trial.

Overall, the survey results support the good ideas that are already alive and well in the Civil Jury Project: raising awareness, providing education, and encouraging greater communication about the decline of civil jury trials.

The Civil Jury Project gives us an opportunity to invite attorneys, judges and trial consultants to talk to each other about how to reform discovery and streamline trials to reduce the cost of litigation as a whole. There are considerable hurdles to clear – consistent/uniform application of reforms across venues and case types will be a tremendous challenge – and meaningful dialogue is a good first step. Of those who oppose jury trial innovations designed to do precisely what attorneys say they want (greater efficiency, lower cost, less time), we also see in the results attorney concerns about: a) losing control over how their cases are tried, and b) judges getting disproportionately more power over case outcomes.

Attorneys surveyed would like to change the hearts and minds of judges who are the gatekeepers of civil jury trials. While they are asking for greater participation of a certain kind (e.g., strict deadlines, consequences for missing them, and strong calendar management), they also want judges to regard jury trials as aspirational rather than as failures of the parties to settle.

Trial consultants have a lot to offer the legal community with respect to attorney perceptions of jury decision-making. Many of the services provided by trial consultants are designed and executed to help lawyers themselves streamline discovery, highlight case strengths, eliminate case weaknesses and minimize risk. We have recurring opportunities in conducting our own jury research to send a positive message of empowerment to jury-eligible citizens about their ability to make decisions and the importance of their jury service. We also regularly provide continuing legal education to improve the trial advocacy skills of attorneys, so that confidence in their ability to try cases with juries (and the confidence of their clients) will increase.

Finally, we recommend further research into the perceived uncertainty about jury decision-making, which is not currently supported by the literature, and to address this issue in a way that fosters a healthy view of the jury as a dispute resolving institution.

The ASTC Trial Consultant Advisors wish to thank the Civil Jury Project for supporting this survey, including us in the dialogue, and giving an important voice to the promotion of best practices that can restore faith in the civil court system.

To see the complete version of this survey, and all questions asked of attorney- respondents, please visit the Civil Jury website.

This article was originally published in the Civil Jury Project newsletter.

For more information see http://civiljuryproject.law.nyu.edu/scholarship/

The full report can be found here: 2016 Attorney Survey: Declining Civil Jury Trials

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Charlotte (Charli) Morris has a Master’s degree in Litigation Science from the University of Kansas (Rock Chalk Jayhawks) and she has been working with attorneys and witnesses since 1993. She can be reached directly by sending an email to [email protected].

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