GPSolo Magazine - March 2006

Trial Practice
Saving the Jury Trial

Perhaps Chief Judge William G. Young of the U.S. District Court for the District of Massachusetts has summed up the vanishing trials phenomenon most succinctly. He emphatically stated last year that “[t]he American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than on the criminal, but it is dying nonetheless.”

Why are jury trials disappearing? Recent research suggests at least five reasons for the vanishing trials phenomenon. First, vast numbers of cases are now resolved by nonjudicial means, especially through alternative dispute resolution (ADR). Second, the cost of litigation has risen dramatically. Third, the past decade witnessed an enormous surge in high-stakes litigation. Plaintiffs have resorted far more frequently to class actions and other devices to “up the ante” in virtually every form of civil litigation. Fourth, since at least 1986 and the U.S. Supreme Court decisions in Matsushita Electrical Industrial Co. v. Zenith Radio Corp., Anderson v. Liberty Lobby, Inc., and Celotex Corp. v. Catrett, all of which encouraged the use of summary judgment, the increase in summary dispositions has been connected to the decrease in the number of trials. Further, cases are now sometimes resolved in “paper trials,” where judges rely on affidavits and documents to decide disputes that might have been developed on the merits more fully at trial. In addition, Congress has passed legislation in some contexts requiring that courts summarily dispose of claims that fail to meet elevated pleading requirements. Fifth, changes in the procedural rules and the growing emphasis on managing dockets have forced judges into the role of case supervisors. Judges and court administrators found ways to divert cases from trial as caseloads increased and concerns focused on filing to disposition times, docket clearance rates, and other management statistics. Amendments to Rule 16 of the Federal Rules of Civil Procedure required presiding judges to monitor closely the management of cases throughout pretrial proceedings to ensure movement toward ultimate resolution. Increased judicial involvement in pretrial proceedings, the setting of firm trial dates, and diverting cases into ADR programs all became popular techniques to administer trial dockets.

Should we be concerned? The Seventh Amendment right to jury trial stands at the center of our justice system. If cases that would ordinarily proceed to trial are now summarily disposed of by the courts, it must be asked whether this Seventh Amendment guarantee has been abridged. Instead of weeding out meritless cases, the 1986 trilogy of Supreme Court cases on summary judgment may have encouraged the courts to use summary procedures to control their dockets through paper trials.

The impact of the vanishing trial on the trial bar has been obvious. Fewer lawyers are trying cases. Those with substantial trial experience may find their courtroom skills atrophying as fewer opportunities to try cases come their way. Clients likewise may suffer as they receive advice from inexperienced lawyers about the risks and benefits of proceeding to trial. Some clients may pay a lot more or accept a lot less to settle a case than they would have if a lawyer with substantial trial experience had valued the case.

Fears about juries. Perhaps one of the most significant factors in the demise of the jury trial is the fear of the parties that the jury’s verdict will be based on something other than thorough consideration and comprehension of the evidence. Trials in complex cases frequently involve evidence that is difficult for the fact-finders to comprehend or recall. The risk that a verdict may not reflect thoughtful deliberation of the evidence and the law but instead reveal a visceral reaction to a play on emotions creates sufficient fear of the process and uncertainty that parties are willing to forgo their day in court and rely on other means to resolve their disputes. Interestingly, studies conducted by jury experts dispel the myths about how juries decide cases. Studies repeatedly show that the contentions about juror incompetence and irresponsibility in evaluating expert and other technical evidence are simply unsupported. Jurors try diligently to do the right thing.

Provisions of the new ABA principles. The ABA Principles for Juries and Jury Trials adopt a number of measures that put additional tools in jurors’ hands to assess evidence.

Standard 13(A) permits jurors to take notes after receiving cautionary instructions from the trial judge on note taking and note use. Studies show that note taking aids memory for both factual and conceptual matters, encourages more active participation in jury deliberations, assists reconstruction of the presented evidence, keeps jurors alert and interested, and increases juror confidence that their deliberations correctly apply the law from the instructions.

Standard 13(C) permits jurors to ask questions of witnesses while at the same time ensuring that parties are not prejudiced. Allowing jurors to submit written questions alerts the trial judge and the parties to evidence that has been misunderstood, affords the parties an opportunity to correct the misunderstanding, and keeps the jury engaged in the trial proceedings.

Standard 13(F) would permit jurors in civil cases to discuss the evidence among themselves in the jury room when all are present, subject to an instruction that would require them to reserve judgment until deliberations commence. Discussing evidence during trial allows jurors to clarify ambiguous evidence while it is still fresh in their minds.

Principle 4 expresses a strong preference for unanimous verdicts in civil cases but acknowledges that unanimity may not be feasible in all cases. A five-sixths verdict is acceptable if jurors have deliberated for a reasonable period of time and cannot reach absolute agreement. Empirical work has contrasted the quality of deliberations when juries operate under a unanimity rule of decision and a less-than-unanimity rule. That work finds that where juries operate under a unanimity rule the thoroughness of deliberations increases and factual discussion and consideration of legal issues are more complete.

Principle 3 expresses a strong preference for 12-person juries while acknowledging that they may not be feasible in all cases. It has long been a basic tenet of our justice system that civil disputes should be resolved by juries made up of people who represent the community at large. Twelve-person juries ensure that juries are more representative of the community because the larger composition can be more diverse. With more viewpoints, deliberations are more thorough and complete.

Standard 10(C) works hand-and-glove with Principle 3 to ensure representativeness by eliminating all automatic excuses or exemptions from jury service and providing that eligible persons summoned for jury service may be excused only if they can demonstrate undue hardship or severe impairment. Eliminating exemptions and ratcheting down on excuses will ensure more representative juries and better reasoned jury verdicts.

Standard 13(G) encourages courts to consider other techniques that will enhance juror comprehension of the evidence, such as altering the sequencing of expert witness testimony, mini or interim openings and closings, computer simulations, deposition summaries, and other aids.

Standard 6(C) calls on trial judges to provide instructions to the jury in plain, understandable language throughout each stage of the trial.


Neal Ellis is a partner in the Raleigh, North Carolina, office of Hunton & Williams LLP. He can be reached at

For More Information about the Tort Trial & Insurance Practice Section

- This article is an abridged and edited version of one that originally appeared on page 14 of The Brief, Summer 2005 (34:4).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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