This article was first published in the Texas Bar Journal‘s December 2013 issue. — Ed.

“The steady erosion of the American trial is our dirty little secret.”

The steady erosion of the American trial is our dirty little secret. A majority of the American public might be surprised to learn that there is indisputable statistical evidence that the number of jury and non-jury trials in our country is, and has been, sharply declining, both in absolute and relative terms.¹ For example, in 2010, only 2,154 jury trials were commenced in federal district courts, which means, on average, Article III judges tried fewer than four civil jury trials that year. While jury trials in federal court obviously have declined, the decline in bench trials has been steadier and steeper.² Even though the number of lawyers continues to increase, the number of trials is still decreasing.³

Nor is the decline in the number of cases tried due to a reduction in case filings. To the contrary, both civil case filings and dispositions actually have increased five-fold in the federal courts during the same time that the number of trials—both the rate of trials as well as the absolute number—has diminished substantially.⁴

Historically, Texas state courts have had a similar experience. For instance, from 1986 to 2008, civil jury trials in Texas state courts fell by 60 percent.⁵ Remarkably, this past year, only 0.4 percent of civil cases were resolved by a jury or a directed verdict in Texas courts, an amount lower than the national average.⁶

* * *

Most important, we need the public to participate in our justice system, yet we are moving in the opposite direction. Juries in Texas civil district courts rendered 1,642 verdicts in 2005.¹⁴ Since then, this number has decreased by nearly 30 percent; in 2012, only 1,197 civil jury verdicts were rendered.¹⁵ Moreover, the voir dire examination of jury panels in civil cases in Texas has dropped as well. Between the 2004-2005 and the 2008-2009 time periods, the number of jury panels examined fell by more than 20 percent.¹⁶ Consequently, with the decrease in the number of jury trials in civil cases, we are excluding from the judicial process the very people we need—the public—to support a strong and independent judiciary, one of the fundamental underpinnings of our democracy. According to Paul D. Carrington, professor of law at Duke University, “The [jury] system has served many purposes, but its enduring purpose has been to secure a greater measure of trust in judicial institutions.”¹⁷

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