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The Vanishing Civil Jury Trial

by posted by on August 06, 2018

Many lawyers with whom I conduct mediations are surprised to learn that the civil jury trial rate in Maricopa County Superior Court has fallen to less than one percent of cases filed.

In response to the dramatic decline in civil jury trials nationwide, NYU Law School in September, 2015, began a formal study of the trend. Along with several federal and superior court judges, I was fortunate to attend, in Phoenix, a February, 2016, meeting of the NYU study group which piqued my interest in this topic.  The director of the project pointed out that in 1962, 5.5 percent of federal civil cases were resolved by a jury trial but, by 2015 that percentage had shrunk to 0.5 percent, which approximates the current rate in the Maricopa County Superior Court.

Reasons cited for this trend include the U.S. Supreme Court’s strong support for arbitration; the increased use of arbitration clauses in construction, consumer and other types of contracts; and Arizona’s 1971 adoption of Rule 72 of Civil Procedure, allowing a majority of the judges in a county to require compulsory arbitration in all civil cases that claim less than a specified amount of damages ($50,000.00 in Maricopa County).  In fiscal year 2015 the Superior Court reported that, of the 9,113 civil cases referred to arbitration, only 319 were appealed, and of those only 12 were heard by a jury.

Additional reasons cited by NYU and other studies include the increased emphasis in the 1980s and 1990s on managerial judging–discouraging trials in favor of speedy case disposition–because of high caseloads. One example is our Civil Rule 16.1’s mandate that counsel and client must attend a settlement conference. Also contributing are liberalized standards for granting summary judgment such as Orme School; the cost of proceeding through a jury trial; lawyers find arbitration to be cheaper and faster; the ability to obtain a firm arbitration date that is convenient to counsel and their clients and won’t be subject to change by a court’s calendar; the privacy of arbitration proceedings; and the ability to select an arbitrator with experience in a particular field.

On the other hand, many studies and articles lament the decline in civil jury trials that is enshrined in the Seventh Amendment to the U.S. Constitution and in most state constitutions, including Article 2 Section 23 of Arizona’s. They point out that people who have served on juries usually end up with greater confidence in our country’s system of justice.  Some scholars suggest that these jurors are more likely to continue their involvement as a free people by voting.

When I revisited the NYU Law School study’s web page recently, I found short video comments by our own Judge Christopher T. Whitten who extolled the jury system’s “magical ability” to employ a “smoothing process” of 6-12 persons who hear things from different perspectives to arrive at a result he contends is preferable to trial by a single judge.  For more information about the NYU project see: https://civiljuryproject.law.nyu.edu.

On a lighter note, for a humorous discussion of the reasons for the decline on the federal level see U.S. District Court Judge D. Brock Hornby’s imaginary, but enlightening, conversations with his law school classmates who are involved as lawyers, magistrates and judges in federal court in the Spring 2016 issue of Judicature, published by the Duke Law Center for Judicial Studies.

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