As use of the civil jury plummets, legal experts offer path forward

ITHACA, N.Y. – Despite its key place in the judicial structure of the United States, the role of the civil jury has been significantly eroded, including by the unique constraints imposed by COVID-19, finds a new white paper published by the Civil Justice Research Initiative.

The paper, “The Civil Jury: Reviving an American Institution,” examines the reasons behind the decline of the civil jury, discusses the many benefits of the institution, and offers research-based recommendations for reviving it.

Valerie Hans, professor of law at Cornell Law School and leading expert on juries, co-authored the white paper with Richard Jolly, associate professor of law at Southwestern Law School, and Robert Peck, president of the Center for Constitutional Litigation.

The authors found that the majority of civil disputes are now resolved not by juries but through private and publicly funded settlement and arbitration proceedings. For example, in 2019, juries handled just 0.53% of filed federal civil disputes. The result, they say, is “a tragic loss of the demonstrable sociopolitical benefits of jury service.”

To remove barriers to civil jury trials, they recommend adopting a jury-trial default rule; removing artificial caps on damages, which limits the availability of jury trials to those who face high costs; and expanding the use of alternative tracks, such as expedited jury trial projects.

Citing research that indicates more robust fact-finding among juries that are diverse, large, and actively engaged with the information presented at trial, the authors also recommend modifying jury selection to ensure the fullest possible community representation; returning to twelve-person civil juries as opposed to the frequently used six- or eight-person ones; and allowing jurors to take notes, ask questions, and engage in trial discussions.

Hans, Jolly, and Peck conclude, “The jury provides unique benefits to the administration of justice, the legitimacy of the court, and society writ large that cannot be recreated by judges, administrative systems, or private arbiters. Deliberate action must be taken to ensure that the promise of the Seventh Amendment is maintained, and that lay judicial participation is restored to its central role in our judiciary, our democratic spirit, and our governance structure.” 

For more information, see this Cornell Law School story.