by Stephen D. Susman
My project to save jury trials was born exactly 15 years ago, at a Saturday morning session of our 40th reunion with Prof. Akhil Amar talking about the Constitution.
Although I began my legal career clerking for Hugo Black, the Supreme Court justice most respectful of juries, and had spent the last 25 years trying business disputes in front of Texas juries, I hadn’t thought a lot about the Constitution or the role of the jury in the founding of this country. I simply attributed the decline in jury trials to tort reform and the enormous amounts of money spent by the Business Roundtable to remove Texas from the list of judicial hellholes for corporations.
Prof. Amar changed that. Ellen and I headed for the bookstore after his talk to buy his book America’s Constitution: A Biography and I quickly began to understand the centrality of the right to trial by jury in our founding documents. Our founders, according to Prof. Amar, believed that juries were the ultimate protectors of all other constitutional rights.
That started a close friendship with Prof. Amar and eventually lead to the establishment two years ago at NYU School of Law of the Civil Jury Project, of which I am the Executive Director. It is the only academic center in the country that is devoted exclusively to asking why jury trials are disappearing, whether it matters and if so, what can be done about it.
We currently have over 200 judicial advisors, 65 academic advisors (including Prof. Amar) and 40 jury consultant advisors. We engage in many types of empirical research, hold conferences around the country, maintain two websites and publish a monthly newsletter entitled JuryMatters. I personally have criss-crossed the country hosting lunches for federal and state trial judges to find out why they are trying so few cases and to suggest how they can improve the quality of the trials they do conduct.
Here are some of our conclusions thus far:
While non-trial lawyers or judges may not realize it, there is no question that almost all trials are disappearing: civil jury trials, civil bench trials and criminal jury trials.
Should we care about this, or are jury trials, like powdered wigs, a relic of 18th Century England, the country that gave America’s founding fathers a 700 year tradition of trial by jury but that abandoned them itself, in civil cases, towards the end of the 19th century?
The right to trial by jury was the only right mentioned 5 times in our founding documents, and of all the rights mentioned in the Declaration of Independence, the Constitution and the Bill of Rights, it was the only right guaranteed by the constitutions of every state before the federal Constitution was adopted. Because the right to trial by jury in civil cases was not contained in the Constitution, 7 of the states that were needed to ratify it, did so only on the condition that there would be a future amendment guaranteeing the right to jury trial in civil cases.
The civil jury was to be a check on an overreaching federal government and judges appointed by the government. Unlike judges, it would be difficult to bribe 12 jurors, unknown until the trial begins. And because jurors have nothing to lose by the verdicts they return, they are beholden to no one.
At the time of the 7th Amendment, jurors could decide the law and the facts, and our founders were well aware of the Peter Zenger trial of 1735, where a jury refused to convict a newspaper publisher for defaming the governor of New York. That result was no anomaly: during colonial times, there were hundreds of convictions for seditious libel in England but only two in the colonies where grand juries usually refused to indict and, if they did, petit juries refused to convict.
Today, we need the protection of juries as much as they were needed in 1791:
- Freedom of the press is still under attack
- Our central government gets more and more powerful
- The appointment of federal judges has become extremely partisan and both parties try to impose litmus tests that ensure the judge will be biased
- Over 90% of the trial judges in this country are state judges who stand for election either to obtain or retain their benches, and all efforts to change that have failed. The empirical research is overwhelming: elected judges are biased in favor of litigants they perceive can help them stay on the bench.
- People who serve on juries make better citizens: empirical research shows they are much more likely to vote and be engaged civically.
- Finally, empirical research establishes that judges agree with jurors 75% of the time, and judges themselves agree that 12 jurors collectively are more likely than the judge, acting alone, to get it right.
Everyone has a different idea of why dispute resolution is being privatized, but the CJP is focusing on the ones that we can do something about without having to change any laws.
- Alerting the public to the phenomenon of the vanishing trial
- Reducing the expense of getting to trial and of the trial itself
- Improving the quality of trials by using various innovations designed to increase jury comprehension
- Encouraging people to want to serve on juries, not avoid jury duty
- Training young lawyers to try jury cases
- Publicizing the disadvantages of alternative forms of private dispute resolution
Saving jury trials is not a partisan cause. Unlike other provisions of the Constitution, there is not even a dispute about what the framers’ intended: the right to trial by jury of civil cases was to be preserved as it existed in 1791. No one argues that the 7th Amendment is a “living provision”—it is the essence of originalism to preserve a right Americans had at the time the Nation was formed.