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Legal Intelligencer: The Disappearing Jury Trial and Its Affect on the American Legal System

An examination of the processes often undertaken to dismiss cases before trial, and the lasting effects that a decline in jury trials may have on the American legal system at large.

In the September 22, 2022 edition of The Legal Intelligencer, Edward T. Kang wrote “The Disappearing Jury Trial and Its Affect on the American Legal System.”

If you asked the average citizen to picture a day in the life of an attorney, you would presumably be bombarded with anecdotes of a person arguing inside of a courtroom. Dramatic courtroom scenes might spring to mind, reminiscent of scenes in classic plays such as “Twelve Angry Men” and “Chicago.” Though these movies and the average person’s understanding of an attorney’s work often skirt over the pretrial drudgery, they appear to capture the essence of the courtroom experience. The courtroom, much like the theater, consists of a live interplay between actors and audience. The audience, or jury in this context, receives a participatory role where they must decide how the show will end. While many might dread the sight of a jury duty notice in their mailbox, jury trials were and remain essential to the American legal system. As the founders of the nation envisioned, the jury was intended to provide unbiased, independent deliberative body that would stand up to unjust power.

Much like theater attendance, however, the number of jury trials is down. Though an essential feature of our legal system, courts throughout the country, especially federal courts, have seen a significant decline in jury trials across all areas of law. Below is an examination of the processes often undertaken to dismiss cases before trial, and the lasting effects that a decline in jury trials may have on the American legal system at large.

“Trial by jury is the cornerstone of our liberty. It is our birthright; who is in opposition to the genius of America shall dare to attempt its subversion?” —James Madison

The Sixth and Seventh Amendments of the U.S. Constitution articulate that citizens of United States are guaranteed the right to a trial by jury in criminal and civil cases. Over the past several decades, however, a downturn in trials has pervaded both case categories. According to Robert Katzberg in “The Vanishing Trial: The Era of Courtroom Performers and the Perils of Its Passing” (2020), this phenomenon has been afflicting the federal criminal justice system for decades, with a significant decrease in jury trials most discernable after the 1980s. Central to this decline in the context of criminal cases, many legal scholars argue, were the implementation of mandatory minimum sentences and the Federal Sentencing Guidelines of 1987, which introduced the assignment of sentencing ranges for all federal offenses. This shift in sentencing reflected the sweeping “law and order” campaign that pervaded the era, which called for stricter sentencing regulations to be imposed on those that committed federal crimes. This new regime in sentencing led to higher incarceration rates and an overall reduction in federal criminal cases that went to trial. A guilty plea meant avoiding trial and reducing the risk of facing a harsher sentence for the same crime. The foreseeable result has been a drastic decline in the percentage of criminal cases reaching trial since the 1980s. According to a 2017 article by Jeffrey Q. Smith and Grant R. McQueen titled “Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does it Matter?”, the percentage of disposition by trial in criminal cases was only 6% in 2000, and by 2010 the rate dropped below 3%. Though the sentencing guidelines are not mandatory but rather “advisory,” the damage has been done and the aversion to trial among defense attorneys and their clients remain.

Civil cases have also witnessed a sharp decline in federal jury trials over the past several decades. In a 2004 article written by Marc Galanter titled “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts,” the author states that the percentage of civil cases in federal court reaching trial dropped significantly from “11.5% in 1962 to 1.8% in 2002.” Over the course of 40 years, the number of civil cases that made it to trial declined by10%. The plummeting continues today, unfortunately, as represented in Table C-4 of the Annual Reports of the Administrative Office of the U.S. Courts, where a meager 0.8% of civil cases reached trial during the 12-month period ending on March 31, 2022. While the percentage drop from 2002 to 2022 is less drastic, it signifies the consistent and continual decline of the jury trial in civil cases. Disposition by trial in civil cases is largely extraneous in the presence of motions to dismiss and motions for summary judgment. As Martin Redish articulated in “Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix” (2005), “one need not to be a trained logician to conclude that an increase in availability of summary judgment will naturally have a corresponding negative impact on the number of trials.” This is especially true, given that the purpose of summary judgment is to rid of seemingly needless trials. Redish points to the 1986 trilogy—Celotex v. Catrett, Anderson v. Liberty Lobby and Matsushita Electric Industrial v. Zenith Radio—as a catalyst for the vanishing trials in federal courts. While questioning whether the vanishing trials is a positive development, Redish does not answer this question as it is too “complicated.” If you were to ask this question to a plaintiff’s counsel and defense counsel, you would get two opposite answers. As a practitioner frequently representing plaintiffs in business disputes, I have my biased opinion.

Though civil trials had already been declining for decades, the 2007 and 2009 Supreme Court decisions made in Bell Atlantic v. Twombly and Ashcroft v. Iqbal signified an even greater obstacle for civil suits that seek to reach trial. The decisions made in Twombly and Iqbal heightened the federal pleading standard under the Federal Rules of Procedure and implemented the necessity of “plausibility” in claims seeking relief. According to a 2010 article by the Congressional Research Service, “federal courts historically interpreted the Rule 8(a)(2) pleading requirement broadly and the corresponding Rule 12(b)(b) standard narrowly,” meaning that the requirements for lasting through a motion to dismiss were relatively simple. Before the Iqbal and Twombly decisions, federal courts held to a notice pleading approach that had been set forth in the 1957 Supreme Court case Conley v. Gibson, ruling that: “A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” This “no set of facts” basis, also known as the “notice pleading” approach, existed as the standard for filing a federal complaint. If the complaint stated a claim that could be proven in a case, the complaint was deemed adequate. The rulings made in Twombly and Iqbal, signified a shift from this “no set of facts” approach to a heightened pleading standard that called for proof of plausibility. Research is still being conducted on the lasting effects of this alteration in the Federal Rules of Procedure, but some legal scholars argue that this decision furthered the downward spiral we see trials on today. Though there is minimal outcry beyond the legal community regarding changes in the Federal Rules of Procedure, such changes have the potential to impact citizen exposure to the judicial system.

As noted in Table C-4 of the annual reports of the Administrative Office of the U.S. Courts, just under 1% of civil cases make it to trial in the U.S. federal courts. The low percentage of cases that result in a trial across all areas of law signifies a shift in the American legal system that affects both the actors and the audience. As the jury trial continues to decline, along with trials in general, so do attorneys’ experience in the courtroom and, more importantly, citizen participation in the legal system. The decline in citizen participation is especially troublesome given the founding principles behind the jury trial system. With such a minuscule percentage of federal cases reaching trial, there must be an analysis of how this trend will affect courtrooms in the future.

While I believe courts should dismiss patently untenable or frivolous cases, when in doubt, the legal system should allow a case to proceed to trial, especially in the case of jury trial. For those cases that survive a motion to dismiss and headed for a trial by jury, the court should exercise extreme caution before dismissing them on a motion for summary judgment. As one of the hallmarks of participatory government, the fate of the jury trial as an active force in American legal life should be a vital question in civic discourse. After all, the founders of this nation saw the jury as a fundamental part of a just society now embedded in the Sixth and Seventh Amendment.

Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at ekang@kanghaggerty.com.

Reprinted with permission from the September 22, 2022 edition of “The Legal Intelligencer” © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

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