The Disappearing Civil Jury Trial

President's Page I watched the movie Twelve Angry Men again the other night. Starring Henry Fonda, E. J. Marshall and a host of other big name actors, it is a powerful and moving film. (The play, now more politically correctly entitled Twelve Angry Jurors, has become a high school staple. My daughter Caitlin appeared in the Bexley High School production several years ago.) I trust that many of you reading this are familiar with either the movie or the play. Jury deliberations following a criminal trial form the setting for the drama, and the audience watches each juror as he wrestles with his verdict. Ultimately, we see the seriousness with which each juror discharges his obligations under our system of government. From a cauldron of twelve different jurors, in the heat of emotional deliberations, comes an example of the successful working of our system of government. No one leaves the theater without an enduring sense of pride in our heritage of the jury trial. On the civil side today though, the movie would have to be called One Angry Mediator. The civil jury trial, in both state and federal courts, is rapidly going the way of the dodo.1 In the United States, there are several ways that our citizens represent the government directly. Service in the military, voting in our elections, and service on a jury are the most common methods by which the citizens play a direct part in our government. We have all heard lawyers, both plaintiff and defense, talk about waving the flag when reminding the jury - in voir dire, opening statement or closing argument - of the obligations of jury service. As the jury trial vanishes, the opportunity for Joe Citizen to appreciate personally the wonder that is our jury system has disappeared along with it. Talk with anyone who has served on a jury. They will tell you almost to a person that they have emerged after their usually initially reluctant service with a renewed respect for our system of government. Within the past year, I have both served as a juror in a criminal case in Ohio and also tried a multi-week jury trial. In both instances, the jury was serious, thoughtful, deliberative, and in my humble opinion, correct when it reached its verdict. But my experience was unusual - 1 tried a civil jury trial. That rarely happens these days. According to Judge Anderson, in the fiscal year 2008-2009, the trial judges on his South Carolina federal bench, including district judges and magistrates judges, tried fewer than 1 ½ trials per judge. This is less than half of a percent of the civil filings in that district. According to statistics kept by the administrative office of the United States Courts, in 1962 there were 5,800 civil trials, about 1 1 percent of all dispositions. In 2004, although there were 8 times as many cases filed, there were only 3,900 federal civil trials or 1.7 percent of case dispositions. When Irish Refo was chair of the Section of Litigation of the American Bar Association, she commissioned a study of the vanishing jury trial and confirmed these and other statistics. …