Nora Freeman Engstrom

In The Civil Jury: Reviving an American Institution, authors Richard L. Jolly, Valerie P. Hans, and Robert S. Peck sound a dire—and important—warning: the jury trial has almost completely vanished from civil litigation, and its disappearance comes at great cost. While many have noted civil trials’ decline over the past century, the Report goes a step further, not only compiling data to track the jury trial’s demise, but also cataloguing reasons for it, explaining why it matters, and offering concrete ways to reverse this ominous trend.¹

In this Jot, I’ll focus on why those of us interested in tort law, and the role of juries in tort law, should read—and heed—the authors’ warnings.

First, a primer on the civil trial landscape writ large. As Jolly, Hans, and Peck explain, between 1962 and 2020, the percent of federal civil cases disposed of via jury trial fell from a respectable 5.5% to an almost non-existent 0.48%. And though state court statistics are spottier, the limited data that are available suggest that, in the states, civil jury trial rates have fallen from 1.8% of civil case dispositions in 1976 to just 0.6% of such dispositions in 2002 to a miniscule .09% in 2019. Further, the few trials that do occur are, on average, shorter and more constricted—with fewer jurors, stricter time limits, more bifurcation, and compressed voir dire.²

Just like civil jury trials generally, tort jury trials are going the way of the dodo bird.

Consider the federal system.³ In 1962, 17.6% of federal tort actions reached trial.⁴ Fast forward to 2022, where only about 0.42% of federal tort actions made it to trial.⁵ Of 103,252 federal tort cases terminated between September 2021 and 2022, only 432 saw trials of any kind—and only 327 dispositions out of 103,252 involved juries. Graphed, the decline of trials is so stark that, by 2022, you need a magnifying glass to see that there were any tort trials at all.

Source: Admin. Office of the U.S. Courts, Annual Report of the Director, Table C-4 (1962 and 2022).⁶

What explains this sharp decline? As Jolly, Hans, and Peck explain, there are plenty of potential culprits. These include: (1) the rise in pretrial adjudication (think, summary judgment and motions to dismiss); (2) the increased use of alternative dispute resolution (frequently, mediation); (3) a feedback loop in which would-be trial lawyers shy away from trial because they fear their advocacy skills are rusty or undeveloped (and, of course, lawyers’ skills remain rusty and undeveloped because they shy away trials); and (4) the proliferation of statutory damage caps, as well as the Supreme Court’s punitive damage jurisprudence, both of which, from the plaintiffs’ perspective, restrict the benefit that would accompany even a resounding trial victory. The authors additionally place some of the blame at the feet of judges who have been known to steer litigants toward settlement with a heavy hand—as well as certain business interests, who, they say, “engaged in a decades-long political campaign to convince the public, practitioners, and the judiciary” that the civil jury is “unqualified to decide complex disputes, and that twelve laypeople routinely bring not wisdom but prejudice against certain litigants.” (P.  4.)

More than simply showing that the civil trial is disappearing and cataloging the reasons behind the decline, the authors, additionally, chronicle four reasons why we should care.

First, in the authors’ telling, the decline of the trial by jury is worrying because juries offer a unique and vital check on concentrated power. Indeed, the American colonists relied on juries to “nullify the excesses of the Crown,” and the Founders viewed civil juries “as a necessary institution within the constitutional structure, responsible for integrating laypeople into the administration of justice and checking abuses of power.” (Pp. 7–9).

Second, juries inject diverse viewpoints into deliberations. After all, judges (still) tend to be mostly white and mostly male.⁷ By contrast, jurors are demographically diverse and come from all walks of life. They reflect—and bring to their rulings—the lived experience of a true cross section of the community. As such, “juries bring…a strong grounding in community norms to the fact-finding task.” (P. 22.)

Third, juries inject a fresh perspective into deliberations. Unlike trial judges, who may think they have heard the same case before, and for whom the fact-finding process may become routinized, juries come to court with fewer preconceptions.

Fourth and finally, civil juries’ benefits extend beyond the courtroom. Here, the authors compile compelling evidence that jury service boosts other forms of civic engagement. For example, “[j]urors who served on civil juries of 12 persons or juries that were required to reach a unanimous decision—in other words, the traditional form of trial by jury—were significantly more likely to vote following their service, controlling for their pre-service voting history.” Id. at 25. Jury trial alums also hold more favorable views of the legal system. On this score, evidence recently compiled by the National Center for State Courts surfaces a troubling decline in the public’s confidence in both state and federal courts⁸ —a fact that tees up two fascinating questions: Might these drops in public confidence be linked to the above jury trial trends? And might they be reversed if the jury trial were revitalized?

Then, beyond these general virtues of the civil jury trial that the authors elegantly address, I would suggest that, for two key reasons, the disappearance of the jury trial matters uniquely in the tort law context.

First, unlike many other kinds of cases that make up civil court dockets, tort lawsuits are particularly likely to pit a lone (and injured) individual against a business—and, as such, tort suits are particularly likely to feature a sharp power dynamic between the those on the left and right sides of the “v.”⁹ There is an argument, I’d suggest, that in that lopsided context, the jury’s diverse perspective is particularly important.¹⁰

Second, as compared to judges, juries can be especially clear communicators. Drawn from and speaking for the community, juries are especially able to express moral disapproval and to recognize and rectify harm. This, too, has particular resonance in tort. After all, that expressive function may not matter when it comes to dry contract claims or simple land disputes. But, when a jury orders Alex Jones to cough up nearly $1 billion for calling the Sandy Hook massacre a hoax, decides that Exxon must hand over more than $5.2 billion for sullying the Prince William Sound, or renders a verdict of $4.7 billion against Johnson & Johnson for talc-related injuries, the jury conveys a particular outrage—and offers the plaintiff particular recognition—that would otherwise go unheard.

In sum, though it’s not “about” the tort system, Jolly, Hans, and Peck’s fine report offers a valuable message for those of us who care about this specific corner of the civil justice ecosystem. The civil jury is on life support. Unless and until we resuscitate it, our tort system is in particular peril.

1. See, e.g., Nora Freeman Engstrom, The Diminished Trial, 86 Fordham L. Rev. 2131 (2018); Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459 (2004).
2. See generally Engstrom, supra note 1.
3. Federal court statistics offer only a partial (and possibly non-representative) window into the tort trial landscape since the lion’s share of tort litigation occurs in state courts. Unfortunately, though, the data on state court goings-on are shamefully scant, leading many scholars—myself included—to use federal statistics as a rough and imperfect proxy. For discussion of the stubborn data challenges that afflict state courts, see, e.g., Anna E. Carpenter et al., Studying the “New” Civil Judges, 2018 Wis. L. Rev. 249, 266 (2018).
4. Galanter, supra note 1, at 462. Importantly, that figure likely exaggerates the number of trials. That is because the calculation is drawn from Table C-4 of the Administrative Office of the U.S. Courts’ Annual Report of the Director, which counts as a trial any “contested proceeding at which evidence is introduced.” Id. at 461. This capacious definition includes not just trials, but also hearings on such matters as Daubert motions or motions for class certification. The tallies of actual, bona fide trials could be as low as half of the “reported” tally. See Engstrom, supra note 1, at 2140.
5. The figures come from Table C-4 for the period from September 30, 2021 through 2022. As explained in note 4, these numbers almost certainly exaggerate the number of trials.
6. In this chart, the blue bars represent the total tally of cases resolved in any way (dismissed, settled, taken to trial, etc.). The orange bar represents the subset involving jury trials. The gray bar represents the subset involving bench trials. Interestingly, in 1962, diversity actions comprised a little more than half of the tort cases in federal court; by 2022, diversity actions comprise almost the entirety of the whole.
7. For a discussion of state judge demographics, see Tracey E. George & Albert H. Yoon, Measuring Justice in State Courts: The Demographics of the State Judiciary, 70 Vand. L. Rev. 1887, 1903 & 1906 (2017) (reporting that “[p]eople of color make up roughly four in ten people in the country but fewer than two in ten judges” and that “[n]ot a single state has women on the bench in the numbers commensurate with their representation in the general population”). For a discussion of federal judge demographics, see Am. Bar Ass’n, Profile of the Legal Profession 6 (2022) (reporting that, as of July 1, 2022, 70% of federal judges were male and 78.4% were white).
8. See Nat’l Center for State Courts, State of State Courts 2022 Poll 6 (2022) (reporting substantial drops in the proportion of Americans who report having “a great deal” or “some” confidence in state and federal courts during the period from 2012 through 2022).
9. See Lynn Langton & Thomas H. Cohen, Civil Bench and Jury Trials in State Courts, 2005, at 3 Tbl. 3 (2008).
10. This representation matters, in part, because it is apt to promote litigants’ sense of procedural justice. For more on procedural justice, see generally Lawrence B. Solum, Procedural Justice, 78 S. Cal. L. Rev. 181 (2004). For the relationship between procedural justice and jury adjudication, see Brooke D. Coleman, A Legal Fempire?: Women in Complex Civil Litigation, 93 Ind. L.J. 617, 642 (2018) (“An individual litigant who sees herself in the decision maker . . . will have a much stronger sense of participation, and thus legitimacy.”).