The diminishing number of trials by jury in civil cases has become an accepted phenomenon. This week’s edition of the National Center for State Courts’ Jur-E Bulletin carried a story from the Richmond (VA) Times Dispatch reporting that criminal jury trials are also on the wane.

The right to a trial by jury in criminal and civil cases is embedded in the fifth, sixth and seventh amendments to the US Constitution. So why would the number of jury trials shrink?

According to Robert Burns, law professor at Northwestern University School of Law, in his book entitled The Death of the American Trial …

The reasons that the trial is dying are complicated and differ depending on the context. Lawyers’ fees, judges’ procedural rules and other technical steps that must be followed on the way to court make trials more expensive. Long delays in getting to trial make settlements more appealing to plaintiffs. Fewer lawyers have the experience and skills to go to trial. Because of legal developments, judges more regularly dismiss cases in motions and in summary judgments — based solely on papers and affidavits.

The Virginia experience with shrinking criminal trials is largely attributable to local legal provisions that juries, not judges, fashion sentences upon conviction and are not bound by sentencing guidelines. The result is often harsher sentencing after a conviction by jury.

The vanishing civil trial may be just as attributable to the pervasiveness of Alternative Dispute Resolution that offers less costly and more timely case disposition options. I referred to ADR as Appropriate Dispute Resolution, because I believe many litigants view justice as being served when both sides give up something as opposed to one side winning all, and therefore prefer a mediated outcome. A little tracked statistic is the percentage of satisfied judgments after a mediated versus adjudicated outcome, which at least in small claims studies have shown to be two-to-three times higher.

There is something to say about a citizen’s right to his or her “day in court,” including the catharsis of telling one’s story. The harsh reality is that jury trials are expensive and in an overwhelming number of instances, unnecessary.

With some exceptions, nationwide we try approximately 2% of cases filed in our trial courts. This number may be on the wane, but even 10 or 15 years ago the number was not more than 3%. So no matter how you cut it, we’re dealing with a substantial minority of the total caseload.

That’s my verdict !!

Photo credit = Microsoft clip art

This entry was posted on Saturday, October 24th, 2009 at 2:19 pm and is filed under Caseflow, Court Management, Jury.You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.