Vol. 77, No. 5, May 2004

Year of the Jury Trial

by George Burnett

Incoming American Bar Association president Robert Gray has declared his term as the Year of the Jury Trial. Several months ago a front page story in the New York Times commented on the marked decline in the number of civil jury trials over the last four decades. Commenting on landmark research by University of Wisconsin law professor Marc Galanter, the Times noted that in 1962, 11.5 percent of all civil cases in federal court were tried to a jury. By 2002, that number had dropped to 1.8 percent. In raw numbers, federal civil jury trials dropped from a peak in 1985 of more than 12,500 to slightly more than 4,500 tried last year. Research continues for an explanation of this trend, which Harvard law professor Arthur Miller calls a "cultural shift of enormous significance." Theoretical explanations for this trend include the rise of mediation and arbitration, the introduction of civil discovery rules that provide litigants fuller information in advance of trial, and the increasing complexity and expense of litigation.

At the same time, there has been an increasing focus in recent years on the efficacy of trial by jury. News reports have been replete with anecdotes about criminal convictions reversed as DNA evidence exonerates the innocent. Celebrity trials focus almost as much on jurors and their deliberations as they do on the evidence and trial itself. There is something unsettling about jurors appearing on morning talk shows a day or two after a verdict is decided to discuss their deliberations and assessment of evidence. There is something disconcerting about efforts to investigate jurors after an adverse verdict by scrutinizing voir dire disclosures and seeking out potential juror misconduct.

These developments undermine public confidence in the jury system in times when the civil jury trial is under careful scrutiny and when the right to a jury trial is invoked less often.

There is a special danger in evaluating this time-honored institution by anecdote, much less by recent anecdote. The jury is central to the judicial branch of government and it is important to remember the principles on which our judicial system was founded. Our founders recognized the importance of preserving the right inherited from our English forebears.

For example, Thomas Jefferson said:

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

His Federalist opponent, John Adams, wrote in agreement, albeit with a bit more color:

"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds."

Alexis de Tocqueville noted that the American jury safeguarded the citizenry from arbitrary government power:

"All of the privileges of a complete and free society are guaranteed and reinforced by the fact that all citizens have a right, no matter who their opposition, to have their rights heard before a jury of their peers. This secures to America its unique form of democratic government and the freedoms that abound."

Abraham Lincoln described the value of the jury with characteristic brevity:

"Why should there not be a patient confidence in the inherent justice of the people. Is there any better or equal hope in the world?"

The judicial branch of government is the one place where citizens may directly address their government. There is no right to speak with members of the executive or legislative branch and if a citizen's communication reaches them, there is no requirement that they listen. The judicial branch is different because there, litigants have an absolute right to directly address judge and jury and may fairly expect that their words will be heard and considered.

Public focus on the American jury system will heighten, not lessen, in coming months and years. When that occurs, let us remember the basic principles on which this institution, which has functioned well for more than 200 years, is founded.

Wisconsin Lawyer