Judges' Views on Vanishing Civil Trials
Bennett, Mark W., Downie, Margaret H., Zervos, Larry C., Judicature
The prevalence of trials as a means for resolving civil cases has declined dramatically in recent years in both federal and state courts.1 This is the startling conclusion of groundbreaking work spearheaded by University of Wisconsin Law School Professor Marc Galanter who has identified and described "the vanishing trial" phenomenon.2
Here are some thought-provoking statistics concerning the decline in civil trials (current as of 2002 data):
* In federal court, case dispositions increased from about 50,000 in 1962 to more than 250,000 in 2002; yet after peaking at over 12,000 trials in 1985, the number of trials declined to about 4,500 in 2002, which is less than the 5,800 civil cases that were tried in 1962. Thus, the proportion of federal civil cases resolved by trial declined from 11.5 percent in 1962 to 1.8 percent in 2002. Of the cases that went to trial in 1962 about half (47.7 percent) were jury trials; of the cases that went to trial in 2002, about two-thirds (65.8 percent) were jury trials.
* In state courts, the data are more fragmentary, but the same trend is apparent. A study of trial courts of general jurisdiction in 21 states and the District of Columbia that contain 58 percent of the U. S. population covering the years 1976 to 2002 found that the portion of civil cases reaching jury trial declined from 1.8 percent of dispositions to 0.6 percent; and bench trial dispositions fell from 34.3 percent to 15.2 percent/' This means that the absolute number of jury trials was one-third less in 2002 than in 1976, and the absolute number of bench trials was down by 6.6 percent during that period.
The importance of "the vanishing trial" phenomenon caused Judicature to seek the insights of three experienced trial judges (one federal and two state) as to whether this trend is apparent to them, and if so, what they diagnose as its causes.
Mark W. Bennett
The jury system is the handmaid of freedom. It catches and takes on the spirit of liberty, and grows and expands with the progress of constitutional government. Rome, Sparta and Carthage fell because they did not know it, let not England and America fall because they threw it away.
-Charles S. May1
1. A decrease in criminal trials has also occurred, but is somewhat less pronounced. The forces at work may be considerably different, however, between civil and criminal cases. This exchange of views will focus solely on civil cases.
2. Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL. STUD. 459 (2004).
3. Brian J. Ostrom, et al., Examining Trial Trends in State Courts: 1976-2002, 1 J. EMPIRICAL LEGAL. STUD. 755 (2004).
The recent dramatic decline in civil jury trials in federal court certainly would have been of concern to Charles May and ought to be a matter of grave and urgent concern for lawyers, litigants, federal judges, and citizens. This precipitous and shocking drop in civil jury trials is even more startling because the number of authorized Article III judges in the district courts has more than doubled during the same period, from 307 in 1962 to 665 in 2002.2 As my colleague, Judge William G. Young, has eloquently written, "The American jury system is withering away. This is the most profound change in our jurisprudence in the history of the Republic."3 More than 200 years ago James Madison observed, "Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."' If Madison is correct, given the passage of the Seventh Amendment in 1789, how did we get into this precarious predicament in just a few short years? More importantly, what needs to be done to breathe new life into trial byjury?
The list of culprits in the legal literature allegedly responsible for the vanishing civil jury trial is surprisingly long, but includes "the usual suspects. …