Patricia Kuehn, Alexis Forbes and other American Society of Trial Consultants (ASTC) work in collaboration with the Civil Jury Project at NYU School of Law to save the jury trial. They recently completed a survey looking at public attitudes toward civil jury trials. Read a summary of that survey here and if you’d like to see more information on the entire survey, the link is available at the end of this article.

A special thanks goes out to FIELDWORK, Inc. for administering the survey.

Introduction

America’s 7^th Amendment right to a civil jury trial has eroded away for years unbeknownst the American citizens. It has reached a critical point where less than 1% of civil cases are resolved by a jury.

In its quest to preserve the American people’s right to a civil jury trial the American Society of Trial Consultants in conjunction with the Civil Jury Project, is studying these principals. The current study queried nearly 1500 people to investigate some underlying concepts and assumptions important to retaining civil jury trials.

Decline

Statistics on civil jury trials have been collected for years. Both federal and state court data reveal a downward trend since 1962. This decline had been documented in various ways; yet they all reach the same conclusion—the civil jury trial is vanishing. Since 1960 the amount of federal cases filed has increased, but the disposal rate by juries decreased from 11% to 2%.^[1] In state cases from 1976-2002 cases resolved by a jury fell from 36% to 16%.^[2] Then in 2015 a study found the state court jury trial rate decreased to .1% in 10 urban counties.^[3]

The decline is also evident in data regarding the number of citizens called for jury duty. Federal court encountered a decline of 31% between 2006 and 2016. In 2006, 307,204 people were summoned for jury duty as compared to only 194,211 in 2016. Similarly in 2006, 71,578 people were selected to serve on a jury as compared to 43,697 citizens in 2016—down 39%.^[4]

In search of a way to slow or reverse this trend the ASTC Trial Consulting Advisors studied attorneys’ current involvement in jury trials, how they view the decline, and their perceived causes among other things.^[5] They found attorneys are concerned about the decline on a bipartisan level. The majority of attorneys surveyed agreed the number of their own cases which proceed to jury trials were too low and the majority of the cases were resolved without a jury. ^[6]

Regardless of the decline, a Pew Research Center survey in April 2017 revealed two-thirds of U.S. adults considered serving on a jury “is part of what is means to be a good citizen.”^[7] Even though it may be recognized in the legal community. Pew’s findings beg the question of whether the American people understand what is happening.

Public Survey I

In order to preserve and revitalize the civil jury trial, the public may need to get involved. Understanding current public perceptions about it is a critical first step. As trial attorneys and consultants alike know, understanding someone’s pre-set attitudes, opinions and frame of reference facilitate effective communication and persuasion. Therefore, Public Survey I is designed to identify and assess a few basic assumptions of public perception of the civil jury trial.

Is the public aware of the decline in civil jury trials and are they upset about the decline? Those were two of the central questions tackled by the ASCT/CJP’s Public Survey I. The survey addressed whether citizens understand there is a decline in civil jury trials, how they feel about decline when informed of it, their perceptions of how important the right to a civil jury trial is and whether prior jury service influences those opinions as primary inquiries.

Based on thousands of anecdotal discussions with jury eligible citizens on hundreds of cases the ASTC’s Trial Consultant Advisors hypothesized people are not aware of the present crisis—the vanishing jury trial. In addition, this study explored whether the public cares about the decline and hypothesized, when people are informed of the decline many would express a neutral or positive view of the decline instead of a negative view. It would indicate they prefer fewer civil jury trials or at least are not upset about the decline. This study suspected the public’s view of how important the right to have a jury decide a lawsuit instead of a judge, arbitrator or mediator might be marginal to moderate. Relationships between these questions and with respondents’ background and demographic information were explored. For example, did a relationship exist between prior jury service and other questions such as respondents’ awareness of the decline, view of the decline or the importance of the right to a civil jury trial?

These inquires sought to identify general baseline perceptions or gut reactions with virtually no explanation, descriptions or elaborations. The study did not assess the breadth or depth of knowledge a respondent may have on the issue.

Methodology

Opinions from 1492 citizens across the country are included in this study. The study consists of 6 tests questions and 13 identifying questions for a total of 19 questions. The order of the test questions remained constant to obtain feedback about awareness before providing additional or priming information. This study intentionally limits the questioning to a first level inquiry.

Respondents participated as part of a convenience sample. The sole screening criteria to participate in this study required a respondent to be a U.S. Citizen. One third, or approximately 500 respondents, participated in person to person interviews whereas approximately 1000 completed an on-line survey.

Demographic and Background Highlights

The following includes selected summaries of respondent demographics.

State:

• 33 States
• Majority in Massachusetts (37.9%) and Illinois (27.8%)

Resident Location type:

• Suburban 67.6%
• Urban 26.1%
• Rural 5.9%

Gender

• Female 75.5%
• Male 24.5%

Race

• Caucasian 81.3%
• Black/African American 8.2%
• Hispanic 4.8%
• Asian-American 3.3%
• Multi-racial 1.4%
• Other 0.9%

Education (highest level of education):

• High school or less 8.5%
• Some college 34%
• College degree 35.8%
• Post Graduate degree 21.5%

Political affiliation:

• Democrat 44.2%
• Republican 21.4%
• Other 34.4%

Political orientation:

• Liberal 40.6%
• Conservative 29.5%
• Other 29.8%

Highlights of the survey

The most crucial and pertinent findings from Public Survey I were as follows:

• A large sample size of U.S. Citizens from various demographic backgrounds and areas nationwide.
• The majority of respondents believed the right to a civil jury trial was important. Two-thirds of this sample believed the right to a civil jury trial was somewhat to very important.
• The majority of respondents were unaware the number of jury trials has declined. Over three-quarters of the sample thought civil jury trials had either stayed the same or gone up.
• When informed there has been a sharp decline in civil jury trials over the last ten years, more than half of the sample expressed either no opinion or a neutral opinion about the decline. Less than half of the respondents expressed an opinion about the decline; less than a quarter viewed the decline as negative.
• Prior jury service had no influence on any of these three opinions.^[8] In this survey, prior jury service did not appear to drive opinions about the awareness of the decline, a respondent’s opinion of the decline, or a belief in the importance of the right to a jury trial.
• Opinions of the decline aligned with beliefs about who was most appropriate to decide cases.Those who viewed the decline negatively were more likely to believe jurors were the most appropriate to decide the case. Those who viewed the decline positively were more likely to think either an arbitrator or judge should decide the case.
• Opinions of the decline were related to a few demographic factors, including age, region of residence, and type of residence. This data indicated older people were more likely to view the decline as a positive development. Suburban respondents were more likely to view the decline as a positive development. And those living outside the Midwest were more likely to view the decline as a positive development.
• Importance of the right to a civil jury trial was related to both residence and to age. Urban residents viewed the right to a civil jury trial as more important than suburban residents viewed the right to a civil jury trial. Men viewed the right to a civil jury trial as more important than women viewed the right.
• Beliefs about who is most appropriate to decide civil suits may be affected by prior jury service, but perhaps not in the way previously anticipated. While prior “service on a jury” exhibited no relationship with the belief that jurors are the most appropriate decision-makers; respondents who had participated in jury service were more likely to believe arbitrators were the most appropriate and less likely to believe judges were the most appropriate, compared to those who hadn’t served on a jury. [9]

To see the complete version of this survey, including the results (importance, decline, most appropriate decision maker, and various relationships) and discussion about these findings please visit the Civil Jury website.

Patricia Kuehn is a national litigation consultant judicially qualified as a small group decision-making expert. In her role as a trial scientist she concentrates on mock decision research, strategic jury selection and persuasive tactics. A veteran of hundreds of cases over 25 years, Ms. Kuehn helps legal teams construct compelling and prevailing litigation strategy, trial plans and effective courtroom communication. Ms. Kuehn holds a Master of Arts in Social Psychology, is licensed to practice law, and serves as President of the American Society of Trial Consultants.

Dr. Alexis Forbes is an Associate Trial Consultant with Bonora Rountree Trial Consulting & Research in San Francisco, California. Using her specialized training as a behavioral scientist, Dr. Forbes’s work involves designing, conducting, and analyzing pretrial research, juror profiling and voir dire, as well as preparing witnesses for deposition and trial. At Bonora Rountree Inc., Dr. Forbes is joined by a team of consultants with over 40 years of trial consulting experience in complex business, criminal defense, intellectual property, and antitrust cases. www.br-tcr.com [email protected].

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