Trial by jury - not often

Trial by jury - not often

September 28th, 2009 by Monica Mercer in News

DOC: Marc Galanter research

A jury trial often is considered the most relevant of all court proceedings, at least by pop culture standards.

After all, how interesting would a television show such as "Law and Order" really be without those dramatic confrontations in front of judge and jury?

The problem is the classic jury trial might not be as relevant in real life anymore.

Research shows that such proceedings in both federal and state courts nationwide have been in decline for years. National and local legal experts agree the decline is changing the landscape and ideals of the American judicial system.

"I have to admit that a lot of my concern is selfish, because as a lawyer and a judge, I love jury trials," Hamilton County Circuit Court Judge Jeff Hollingsworth said in a speech last year. "It's the competition. It's the game. It's the human drama.

"But I am concerned we are irrationally removing the citizens from participation in the judicial system," he said. "I think if that happens, there are going to be many effects, and they won't be good."


Years after a major 2003 American Bar Association study revealed concrete numbers to back up the general theory of the "vanishing trial," study author Marc Galanter, a law professor at the University of Wisconsin, said his continuing research only confirms the trend.

In 1962, the study shows, 5,802 federal civil cases, or 11.5 percent of all such cases, ended with a jury trial. Mr. Galanter said the numbers in 2004 show that, while five times as many federal civil cases were filed, only about 4,000 - or 1.7 percent - ended in trial.

The numbers are similar in federal criminal trials and across state jurisdictions, where research from the National Center for State Courts indicates the total number of state jury trials is down since 1976 by one-third.

Twenty years ago, a typical state judge would try 35 to 40 cases a year, Mr. Galanter said.

"Now we're talking about 12," he said.

The same thing has happened in Hamilton County, Judge Hollingsworth said. State and local statistics were available only for the past five years, but they show dips in the number of civil and criminal trials. Another local judge says anecdotal evidence of the shift since the early 1970s is starker.

"They were trying so many (cases in the 1970s) that they couldn't get them transcribed in time for the appeal, which led to a lot of cases being overturned," Hamilton County Criminal Court Judge Don Poole said.

He said he remembers when judges had two or three trials going at once and juries sometimes would deliberate until 10 p.m.

Some argue that the shift away from jury trials is not altogether negative and is symptomatic of the unique problems of the modern judicial system.

Hamilton County Circuit Court Judge Neil Thomas said civil trials today tend to be very expensive and often might exceed the amount of any possible settlement. Such trials also take a significant amount of time and effort, he said. In comparison, relatively new alternatives such as mediation can do the job more efficiently and even make both sides feel like they've won, Judge Thomas said.

In the criminal realm, Judge Poole said he felt strongly that it was simply Tennessee's new sentencing guidelines in the late 1980s that shifted the priority away from trying small theft and DUI cases - which took up much of the local trial docket - to trying only felony cases such as murder and rape. The state's jails and penitentiaries simply had no more room for those convicted of less-serious crimes, he said.

A similar situation exists in federal courts. Armed with modern forensic technology, authorities tend to prosecute only the cases with solid evidence of guilt, local federal defense attorneys say. As a result, criminal defendants are all but guaranteed a conviction at trial, so plea bargains usually seem like much better deals in which smaller sentences can be negotiated.

"Today's clientele are risk-averse," Chattanooga criminal defense attorney Brian O'Shaughnessy said. "They want to know how their case is going to end. You don't know what you're going to get in a jury trial."


Judge Hollingsworth said that most disputes "should never really get as far" as a jury trial. But he insisted today's lack of trials has a negative impact on the public.

Deals reached behind closed doors cause the public to question the fairness of the judicial system, he said. The rise of mediation reflects today's "overwhelming desire to reach a consensus on each and every issue," even in the face of lawsuits in which compromise might not necessarily be the right course, he said.

"Juries make a decision, and someone wins and someone loses," Judge Hollingsworth said. "With that decision, we have a guidepost for how to act in the future" when similar disputes arise.

Mr. Galanter said there also are negative effects on the legal profession itself when lawyers are faced with fewer opportunities to litigate cases.

"The pool of those experienced in trials is shrinking," he said. "This has become a self-fulfilling prophecy with young lawyers especially, whose lack of trial experience makes them even more reluctant to take cases to trial and, in turn, makes the pool shrink even more."

Such reluctance can have substantial effects, officials said, particularly in civil cases, where evidence suggests that plaintiffs who sue companies often fare better in jury trials than if they choose to settle.

Chattanooga plaintiffs' attorney Jay Kennamer said the lack of jury trials "absolutely" hurts people with legitimate claims.

"Lawyers should be trying their cases," he said. "The lack of jury trials hurts us, and it hurts our clients."

By the numbers

Hamilton County Criminal Court cases ending in jury trials:

* 2004: 28

* 2005: 35

* 2006: 45

* 2007: 28

* 2008: 9

Hamilton County Circuit Court cases ending in jury trials:

* 2004: 36

* 2005: 33

* 2006: 44

* 2007: 28

* 2008: 26

Sources: Court records