New ABA study explains why civil and criminal jury trials are disappearing

As jury trials disappear from American courtrooms, lawyers, judges and legislators should consider changing four factors that are suppressing such trials: civil damage caps, mandatory arbitration, criminal sentencing guidelines and mandatory minimum sentences.

That’s the conclusion of a four-year study of the disappearing jury trial recently released by the American Bar Association Commission on the American Jury.

The study, titled “Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges,” is based on a survey of 1,460 lawyers and judges from 2016 to 2019. The results were published in the Louisiana Law Review at Louisiana State University. The article was co-authored by Shari Seidman Diamond, a law professor at Northwestern University, and Jessica M. Salerno, an associate professor of psychology at Arizona State University.

Lawyers and judges surveyed said that while jury trials are less predictable, slower and less cost-effective than alternatives, they are also fairer. By large margins, lawyers and judges said jury trials are worth the costs associated with them.

These responses “suggest that measures should be taken to reverse the recent downward spiral in the prevalence of jury trials,” the survey concludes. The authors suggest eliminating or raising the level of damage caps, eliminating mandatory arbitration, reforming sentencing guidelines and abolishing mandatory minimums. Lawyers and judges surveyed agreed that these four factors are the most common causes of the decline in civil and criminal jury trials.

“The right to a jury trial in criminal and civil cases is guaranteed by the U.S. Constitution, but jury trials have been vanishing for decades,” ABA President Patricia Lee Refo said. “This new study again confirms what other ABA studies have long shown—that our laws and customs need a fresh look to ensure that jury trials, a cornerstone of the American justice system, do not disappear altogether.”

The number of jury trials has dropped so dramatically that “the jury trial is an exceptional rather than a commonplace outcome,” the report states. The percentage of federal lawsuits decided by jury trial dropped from 5.5% in 1962 to 0.8% in 2013. The percentage of federal criminal cases decided by jury trial dropped from 8.2% in 1962 to 3.6% by 2013.

According to the survey:

• Criminal cases: Judges, prosecutors and defense attorneys all rank jury trials as fairer than bench trials.

• Civil cases: Judges, plaintiff attorneys and defense attorneys agree that mediation is the fairest way to resolve cases, followed by jury trials, then bench trials. All groups rank arbitration as the least fair method.

• Pressure on civil litigants to settle: Lawyers perceive judges and mediators as major sources of pressure on plaintiffs to settle cases before trial, in addition to pressure from the litigants’ own attorneys.

• Pressure on defendants to plead guilty: Judges believe that defense attorneys are the only source of pressure on defendants to plead guilty before trial.

However, at least one-third of criminal defense attorneys also blame pressure from prosecutors, judges and defendants’ relatives.