By Anna Offit & Richard Lorren Jolly
The civil jury is disappearing. Despite constitutional or legislative protection in every American jurisdiction, juries today decide fewer civil disputes than at any other point in history. For instance, although federal juries decided roughly 15.2% of filed civil cases in 1940, they decided a mere 0.63% in 2017. A similar trend is apparent in all state courts that report their caseload statistics, including California. This decline has serious consequences for not just the health of our judiciary, but of our polity more generally. It demands our attention.
Although quantitative figures document well the alarming downward trend, qualitative research by scholars and academic institutions paint a fuller picture of what the decline of the civil jury means. Interdisciplinary legal scholars such as John Gastil and Richard Reuben have drawn attention to the deep relationship between democratic governance and the civic engagement of ordinary citizens that results through jury service. Others, including Myriam Gilles, have highlighted the importance of court access, reminding us of the perils of a justice system that precludes poor litigants from having their day in court due to the appearance of class action bans in standard contracts, for example. In the wake of the #MeToo movement, researchers are increasingly questioning the wisdom of nondisclosure agreements that can exclude lay decision-makers — and the public more broadly — from scrutiny of serious sexual harassment allegations. (See research and scholarship on issues discussed in this article at https://civiljuryproject.law.nyu.edu/.)
But while the culture and contexts that sustain critiques like these have shifted, concern about the exclusion of laypeople from participating in judicial decision making is nothing new. Over two centuries ago, William Blackstone explained, “Every new tribunal erected for the decision of facts, without the intervention of a jury … is a step towards establishing aristocracy, the most oppressive of absolute government.” Thomas Jefferson surely agreed, offering that if he were “called upon to decide whether the people had best be omitted in the legislative or in the judiciary department, [he] would say it is better leave them out of the legislative.” Even Plato warned two millennia ago: “[I]n private suits … all should have a share, for he has no share in the administration of justice, is apt to imagine that he has no share in the State at all.” To be a juror is a political designation; it is to be recognized as a full participant of our polity. And indeed, it has been a hard fought civil right for members of many traditionally excluded groups through much of this country’s history.
The jury, and specifically the civil jury, is unique among American institutions. It is the only house of government positioned to check abuses by not only the executive, judicial, and legislative branches, but also by powerful social and economic actors. It serves as a mediator between the people and those outsized forces, insuring that no government act will be enforced without first passing through a body of laymen. It is the last line of our democracy before the state can act on its people. Conscientious of this, the Founders wrote the jury trial guarantee directly into the Constitution. True, the protection for civil juries was initially omitted. But as Alexander Hamilton documented in Federalist No. 83, the most common complaint among Anti-Federalists was the original Constitution’s lack of jury protections in civil disputes. Many states refused to ratify the instrument until a civil jury trial guarantee was promised. Enter the Seventh Amendment in 1789.
The jury remained in high esteem through much of the early American period and through the Civil War, though the twentieth century has not been so kind. The introduction of binding arbitration, which was flatly prohibited at common law, emerged in 1925 at the behest of politically powerful railroad companies. Then came the drafters of the Federal Rules of Civil Procedure in 1938, who outright despised jury trials—one drafter even stated, “This method of settling disputes is expensive, dilatory, and perhaps anachronistic.” They drafted rules designed to minimize the jury’s role in the combined courts of law and equity. By the 1960s, overworked judges needed new strategies to handle the new system and developed managerial approaches that injected them into the dispute early on in the proceedings. And the Supreme Court emboldened these judges to dispose of cases more readily with its Summary Judgment Trilogy in 1986. Each of these timeline beats corresponded with a steep decline in the rate of jury trials: The number of federal filings decided by civil jury was 15.2% in 1940; 12% in 1952; 9.1% in 1982; 3.5% in 1992; 1.2% in 2002; and has remained below 1% since 2005.
So the waiting question is what can be done today to help stem the loss of this pivotal institution? Building on the expertise of state and federal judges who have participated in workshops at New York University and extensive programming around the country, the Civil Jury Project has been studying trial innovations designed to strengthen what is left of the civil jury system. Among the many recommendations, three trial techniques have emerged as promising resources for making litigation quicker, less costly, and more just. These changes include efforts to:
(1) Limit the length of jury trials;
(2) Give substantive preliminary instructions to jurors; and
(3) Permit jurors to discuss the evidence before their final deliberation.
These recommendations have been echoed by numerous bar organizations and adopted in many state courts. Some judges have gone so far as to engage in their own experiments by soliciting anonymous feedback on these trial techniques from former jurors. And because these practices are not prohibited in most jurisdictions, counsel can agree and recommend that judges allow them. Finally, and significantly, these innovations can improve broader attitudes toward jury service, as former jurors report to friends, family, and colleagues—through social media and otherwise—that their jury service was gratifying and inspiring.
Limiting the Length of Trials
This first innovation is perhaps the most obvious. It entails shortening jury trials by setting a maximum number of trial hours— or days—for each party. Judges are free to set such limits under their broad discretion to control their dockets. And Principle 12 of the ABA’s American Jury Project Principles and Standards provides that “[c]ourts should limit the length of jury trials insofar as justice allows,” and that “jurors should be fully informed of the trial schedule established.” The sooner a judge sets time limits, the more likely it will be that such limits curtail the amount of costly pretrial discovery. A lawyer facing a trial time limit of several days, for example, will have a hard time justifying to her client or partners the need for multiple depositions that will remain invisible to the jury. In this way, trial time limits can “trickle down” and affect the entire dispute resolution process. Moreover, by the accounts of judges who have shared their observations, setting reasonable time limits does not compromise good representation; rather, “trimming the fat” can result in stronger arguments. Finally, one of the most frequently voiced complaints by jurors is that there was too much repetition of evidence and arguments during trial. The socio-economic representativeness of jurors who are willing and able to serve is also likely to increase as the anticipated trial length decreases. Jurors are able to restructure their other personal and professional obligations so that they may be fully committed judicial actors. Respecting jurors’ time is critical if judges and practitioners rely on jurors’ respect for the system.
Giving Substantive Preliminary Instructions
Next, it is critical that judges and practitioners empower jurors to make accurate decisions by providing them with complete substantive instructions on the relevant law at the outset of the trial. Principle 6 of the ABA’s Principles for Juries and Jury Trials already suggests that “[c]ourts should educate jurors regarding the essential aspects of a jury trial.” And Federal Rule of Civil Procedure 51(b)(3) provides federal courts considerable leeway in determining when to instruct a jury, stating that instruction may take place “at any time before the jury is discharged.” The purpose of giving substantive instructions early on should be obvious. In all other teaching environments, the instructor provides directions before the recipient undertakes the task—not when the task is already completed. Accordingly, preliminary substantive jury instructions are instructions provided to jurors at the start of a trial— before the presentation of evidence by the parties—on the elements of a claim or defense. A 2008 ABA study of preliminary substantive instructions found that more than 80% of jurors, 85% of judges, and 70% of attorneys who participated stated they believed that the intended goal of enhancing juror understanding of the relevant law was accomplished. More informed jurors mean that the litigants, judge, and society in general can have greater faith in the accuracy of the resulting verdict.
Allowing Early Discussion of Evidence
The last innovation is that jurors should be permitted to discuss evidence throughout the trial so long as they agree not to reach a final decision until after closing arguments. The function of this small but significant modification is to motivate juror engagement and involvement in the trial in service of more accurate fact-finding. Research shows that jurors who discuss evidence during the trial may recall the evidence more easily when deliberations begin. Allowing jurors to discuss the evidence when they are together in the jury room also makes for a more rewarding juror experience: Jurors do not view time spent meaningfully in the jury room as wasted.
This practice has been heavily studied and implemented in a handful of jurisdictions, including Arizona, Colorado, and North Dakota. The famous Arizona Jury Project found that 89% of juries that were instructed that they could, though were not required to discuss evidence in the case before final deliberations chose to do so. And data shows that jurors who have been allowed to engage in interim discussions, but have also been instructed not to make any final decisions until final deliberations, in fact follow this instruction. There appears to be no difference between those jurors allowed to discuss and those prohibited from discussing evidence as to when during the course of the trial they started to solidify their decision of who should win the case. Thus, neither side should see themselves as disadvantaged by this innovation.
While there are some critiques to the above recommendations, there is no question that decisive action must be taken if we are to halt the civil jury’s steady march toward extinction. Though it is unlikely that the courts alone can turn back the Constitutional clock and restore the civil jury to its proper place in our judicial system, judges are already inspiring bold and innovative discussion of promising next steps. As recently as 2017, now-Justice Gorsuch and Judge Susan Graber suggested that the Federal Rules of Civil Procedure Advisory Committee adopt a jury-trial default rule, in which parties automatically receive a jury trial unless affirmatively waived because such a rule would, among other benefits, be more “true to the spirit of the Seventh Amendment.” Advocates of the civil jury trial might also benefit from harnessing some of the moral outrage that pervades scholarly attention to declining criminal jury trials. Here, best-selling author Steven Brill has reminded us in evocative terms that the judicial battle waged against the Seventh Amendment is part of a broader battle waged by corporate America against the everyday consumers who see jury waiver clauses every time they open bank accounts, buy cell phones, and use credit cards.
Though modest and incremental, we see promise that trial innovations including those mentioned above can improve the administration of justice by improving civil jury trials. By helping to keep trials moving and enhancing juror comprehension of evidence, they facilitate quicker and cheaper public dispute resolution for litigants. Judges who have used these approaches have reported satisfaction with their ability to more efficiently manage their dockets. The innovations greater respect the time and judgment of jurors, who, in turn, may bring greater enthusiasm and attentiveness to their deliberation. And while these small changes are unlikely to alone reverse the civil jury’s century long decline, they may help illuminate a new path forward, one in which the institution is again recognized as a central part of our political and social system. A place where people of all backgrounds come together to discuss, debate, and overcome disagreement on some of society’s most difficult issues. A place where democracy is renewed.
Anna Offit, JD, MPhil, PhD serves as a Research Fellow for the Civil Jury Project at New York University School of Law. Her empirical legal research focuses on lay participation in justice systems with a focus on prosecutorial decisionmaking and legal ethics.
Richard Lorren Jolly, JD, MSc, serves as a Research Fellow for the Civil Justice Research Initiative at the University of California, Berkeley and Irvine Schools of Law and is an attorney in Los Angeles at Susman Godfrey, LLP.