"Trial by jury" is disappearing in the U.S.

The New York Times has an interesting article today on the disappearance of trial by jury in the U.S.

Trials are on the verge of extinction. They have been replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers’ written submissions.

Federal courts conducted about 3,600 trials in civil cases last year, down from 5,800 in 1962. That is not an enormous drop — until you consider that the number of cases has quintupled in the meantime.

In percentage terms, only 1.3 percent of federal civil cases ended in trials last year, down from 11.5 percent in 1962.

The trends in criminal cases and in the state courts are broadly similar, though not always quite as striking. But it is beyond dispute that even as the number of lawyers has grown twice as fast as the population and even as the number of lawsuits has exploded, actual trials have become quite rare.

Instead of hearing testimony, ruling on objections and instructing jurors on the law, judges spend most of their time supervising the exchange of information, deciding pretrial motions and dealing with settlements and plea bargains.

There is, of course, nothing wrong with settlements, at least when they are the product of reasoned and sensible compromise between evenly matched adversaries. But trials are not disappearing simply because more cases are being settled. Instead, they are increasingly being replaced by summary judgments, in which judges evaluate evidence submitted to them on paper.

“During the last years of the 20th century, summary judgment in the federal courts moved from a small fraction of dispositions by trial to a magnitude several times greater than the number of trials,” Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics and Political Science, wrote last year in The Journal of Dispute Resolution.

Professor Galanter elaborated in an interview. “Summary judgments are being asked for in about 17 percent of cases and granted in about 9 percent,” he said, citing recent data from the Federal Judicial Center. That is a big jump from 1960, when no more than 1.8 percent of federal civil cases ended in summary judgment, according to data from the administrative office of the federal courts analyzed in a 1961 law review article.

“We’ve moved in a way to a more European way of decision-making, by looking at the court file rather than through encounters with living witnesses whose testimony is tested by cross-examination,” Professor Galanter said.

In criminal cases, the vast majority of prosecutions end in plea bargains. In an article called “Vanishing Trials, Vanishing Juries, Vanishing Constitution” in the Suffolk University Law Review last year, a federal judge questioned the fairness of the choices confronting many criminal defendants.

Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government.

The movement away from jury trials is not just a societal reallocation of resources or a policy choice. Rather, as Judge Young put it, it represents a disavowal of “the most stunning and successful experiment in direct popular sovereignty in all history.”

I have participated in more than thirty trials (mostly civil) as an expert witness, some bench trials before a judge and some before a jury. Based on that experience, I have found that judges are wrong (in my vastly superior view of truth) just as frequently as juries. However, the judges often can be bought (or the near equivalent of that if there are political issues at hand or if they happen to play golf with and be members of the same club with one of the parties to a case), whereas it's very dangerous to try to buy a juror. So, unless I happen to know the judge personally and hob nob with him/her at the club, I think I'd throw my lot to the jury.

It's a crap shoot either way. That's why settlements have become so common.