Jury trials are at the very foundation of American participatory democracy. According to Alexis de Tocqueville, in Democracy in America, “The jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties. I think that the practical intelligence and political good sense of Americans are mainly attributable to the long use that they have made of the jury in civil cases.”
The foundation is at risk.
This point was brought home by U.S. District Judge Gregory Presnell at a recent Federal Court Practice Committee’s meeting in Orlando, Florida. Judge Presnell expressed alarm at the precipitous decline in Federal jury trials. He noted that in the late 1960s, 11 percent of federal civil filings wound up in jury trials, while in 2009, that number had dipped to 1.2 percent. (In the U.S. Middle District of Florida, only 0.8 percent of civil filings were resolved by a jury in 2009.)
Expressing strong feelings about the importance of jury trials, Judge Pressner asked his audience, “Where in a government this complex – and with the difficulties and issues and problems – do you have a system where six or 12 people make a critical decision affecting people’s lives and fortunes?”
The reasons for the decline in civil jury trials at the federal – and the state level – include unfair arbitrary damage caps, mandatory binding arbitration, the creation of causes of action without the right to a jury trial, overly stringent gatekeeping on the part of judges to weed out cases perceived as being weak, and mandatory (although not binding) mediation.
Another factor in the decline is the increasing cost associated with going to trial. In Judge Presnell’s experience, when a case does go to trial, it is not unusual for three lawyers, a paralegal, and a tech person on a computer to be sitting at the defense table. “It’s got to be costing them over $1,000 an hour to try this case.”
There is also a perception by lawyers and their clients that juries are not capable of handling complex cases, Judge Presnell sees things differently, telling his audience, “You know, they usually do get it right.”
One solution being considered in California to stem the decline in jury trials is the concept of mini trials. If the parties agree, they will enter into a high-low stipulation, and each side will only have three hours to present its case. The high-low element will bring some certainty to the proceedings and the 3-hour limit will keep costs down. This procedure might encourage litigants to let juries decide cases.
I have written previously on this topic – Tort “Deform” – My Opinion. In my view, the jury system is a distinguishing feature of the American experiment, one which must be encouraged and protected.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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