The Decline Of Jury Trials?

The A.B.A. is wondering what it can, or even if it should, do to stop the decline of jury trials.

About 40 years ago, more than 11 percent of federal civil cases went to trial. Now, less than 2 percent do. Federal criminal trials also have decreased in that time.

While those numbers sound bad for trial lawyers I suggest we take a deeper look. Percentages are only one measure of things. Though difficult to find any number of cases filed in federal of state courts from 40 years ago, it is well acknowledged that more cases are entering the system now than 10, 15, and more than likely 40 years ago. We have become a more litigious society. As a result any percentage of cases going to a jury trial are meaningless without knowledge of the number of cases entering into the system.

How many cases enter the judicial system yearly? A federal district court judge usually acquires 400 new cases a year. Civil judges in Marion County, admittedly the busiest court system in the state, have over 2,200 cases filed yearly. I am willing to bet the numbers on the criminal court side are easily as busy. Given a limited number of judges, court staff, court rooms, and other limited resources only so many cases can go all the way to trial.

More accused criminals are opting for plea deals and companies are finding it cheaper to settle disputes through arbitration or other means.

Of course it is cheaper and easier to settle or opt for plea deals. Because the cases can not get through the system quickly, it costs money and time to keep attorneys maintaining the case. In addition many jurisdictions have a local rule forcing civil cases to attempt mediation before the trial in order to conserve scarce judicial resources. These 'trial lawyer' that the article refers to are not performing solely trial work. They are likely representing their clients in the settlement negotiations and mediation hearings.

Is this a bad thing? Of course not. It is simply a shifting of legal styles and an enhancement of new and different skills for a attorney. One should never be afraid to learn new things nor fear what you do not know despite our ingrained habits and comfort zones. Luckily for students we have both a Trial Practice and two different Mediation classes to learn both sets of skills along with the two differing sets of mentalality required for the two different skillsets.

"This ain't law, folks," Patrick Higginbotham, a federal appeals court judge from Dallas, said Saturday at an American Bar Association meeting on the
subject.

With all due respect to Judge Higginbotham, it is law. It is the private law of settling parties that have taken ownership of their resolution process. Because the parties have a stake in the product they have helped create, they are more likely to follow through with the private agreement than a judicially crafted order. Is that not the best justice for all concerned? The decline in jury trials may the best resolution for many parties.