Hon. Patrick E. Higginbotham
Hon. Lee H. Rosenthal
Professor Steven S. Gensler
Editor’s Note: This article was originally published in our newsletter and included relevant charts, tables, and other multimedia. Readers who wish to examine the data referenced in this article can find it at this link.
A Note From the Authors
This might seem an odd time for an article about restoring 12-person civil juries. As we went to final editing with Judicature, most courts had put civil jury trials on hold due to the pandemic. We considered delaying publication, but after thinking about it, we came to believe that this is a critical moment.
Civil jury trials are already starting to return. As they do, some may urge us to use smaller juries to reduce the size of venires and make social distancing easier. We cannot ignore these practical points. But neither should we let these short-term concerns overtake all else or chart our long-term path. We have an opportunity, and a need, to remind ourselves why twelve jurors was for centuries the standard, and why it remains so in criminal cases. The civil jury post-2020 may run a little differently than it has before, but it remains a group tasked with making consequential judgments through a collaborative process. Whether those people are together in a courthouse or on a computer screen, that process works best when jurors deliberate by the dozen.
A jury of twelve resonates through the centuries. Twelve-person juries were a fixture from at least the 14th century until the 1970s. In 1973, however, the Supreme Court held that the Seventh Amendment did not require 12-person juries in civil cases, concluding that smaller juries are just as good as larger ones.  In 1991, Rule 48 was amended to state that “[a] jury must begin with at least 6 and no more than 12 members.”  That’s where things stand today. Whether to empanel 6 or 12 or some number in between is a choice for the judge to make.
I. The Size of Civil Juries Today.
Our sense, and that of many others, has been that traditional 12-person civil juries were becoming rare, and that federal judges had come to view smaller juries as the norm. But data on jury size is hard to come by. The Administrative Office of the U.S. Courts tracks the number of civil jury trials held, but it doesn’t track the size of those juries. So, we collected jury-size data from 15 federal districts for the three-year period from January 1, 2016 to December 31, 2018.
The results were dramatic and confirmed our fears. In the 15 districts in our study, there were a total of 1,831 civil-jury trials from 2016 to 2018 (and 22 in 2019). Of those, just 11.7% (214) began as juries of 12. At the other end of the spectrum, juries that began with just 6 members were rare. Just 1.6% (30) of the juries began with only 6 members, perhaps because of the fear of a mistrial if one of the jurors was discharged and the parties would not stipulate to a verdict by fewer than 6.
If judges aren’t using juries of 6 or 12, what are they using? The answer is clear: 8. Fully 61.4% (1,125) of the juries began with 8 members. Courts are over five times more likely to empanel a jury of 8 than they are to empanel a jury of 12. In short, juries of 8 are the new normal, and anything else is the exception. (A pie chart and table are included at the bottom of this piece.)
These statistics hold up when analyzed across the nature of the suit. Across all of the major nature of suit categories, from diversity tort and contract cases to federal civil rights cases, 8-person juries were used at least 55% of the time and outnumbered 12-person juries by at least four-to-one.
These statistics also hold up across most of the individual districts we examined, though with some notable exceptions. In 12 of the 15 districts in our study, juries of 8 or fewer were used in at least half of the cases. In 8 of the 15 districts, juries of 8 or fewer were used over 80% of the time. In two districts, juries of 8 or fewer were used 97.5% and 93.6% of the time, respectively. There were only two districts in which there were more 12-person juries than 8-person juries.
II. Why Bigger Is So Clearly Better.
So now we know. Juries have shrunk. Most of the time, 8 is the number. But is it the right number? The answer from the social-science community has always been a resounding no. For nearly 50 years, social scientists have been saying that the Supreme Court got it wrong when it said that smaller juries were just as good as larger ones.
- Larger juries are more predictable.
Larger juries are more predictable and less likely to render outlier awards. Six-person juries are four times more likely to return extremely high or low damage awards compared to the average. In contrast, damage awards by larger juries are more likely to cluster toward the middle range of awards. 
The outlier problem is significant. First, juries are the voice of the community. A jury’s decision is best, then, when it hews closely to the views of the community it represents. Larger juries are more likely to reach verdicts closer to the consensus view. Second, the increased chance that a small jury might return a verdict outside of community norms undermines faith and trust in the system. One of the major complaints of those deciding whether to file and try a civil dispute is whether the court system produces intolerably unpredictable and variable results. Greater unpredictability is the predictable result when courts use shrunken juries.
- Larger juries make better decisions.
Social science shows that for many kinds of decision tasks, the larger a workable decision-making group, the better the decisions will be because of the increased resources more group members provide. If 6 heads are better than one, 12 are in most respects better than 6 or 8. Larger juries recall the evidence more accurately, recall more probative information, and rely less on conclusory statements and nonprobative evidence.
- Larger juries are more representative of the community.
In Colgrove, the Court acknowledged the value of minority representation on juries but concluded that reducing the size of juries would have at most a negligible impact. In reality, cutting the size of the jury dramatically increases the chance of excluding minorities. For a minority group that is 30% of a community, there is about a 1.4% chance that a 12-person jury will not include a member of that group. But if you cut the jury in half to 6, the chance of exclusion doesn’t just double, it goes up to 11.8%, making exclusion 8 times more likely. Real-world studies of civil juries in Los Angeles County, CA and Cook County, IL have confirmed this impact.
The Court also erred when it assumed that the values of community representation would be served so long as a single minority member was on the jury. Studies show that the ability of a dissenting voice to withstand group pressure is greatly increased when a second dissenting voice is added. A single person who sees things differently than 5 others is in a much weaker position than 2 people who see things differently than 10 others.
III. The Jury-Size Debate Redux: 2020
The Supreme Court held that smaller juries are permitted. It never said they are required. The same goes for Rule 48, which lets judges choose any number of jurors between 6 and 12. That’s the key point. It’s a choice. And in 2020, the case for returning to the 12-person jury is stronger than ever.
First, in an age when fewer and fewer civil cases are tried, each civil jury trial takes on added importance. In 1970, 4.3% of federal civil cases were tried to a civil jury. Today, that number has dropped to 0.5%. Fewer jury verdicts means fewer data points on liability and damages. These are critical signals to parties and lawyers about how to evaluate similar cases, whether to settle, and on what terms. Outliers—in either direction—exert an even greater influence as the number of verdicts shrinks. We should avoid them if we can. Returning to 12-person juries will help do that.
Second, fewer jury trials also means fewer opportunities for citizens to serve as jurors. Civil jury service is the closest most Americans ever get to having their own say in expressing and defining community norms. People who serve on juries consistently say that the experience makes them more appreciative and more trustful of the court system. Every empty jury chair is a missed opportunity to strengthen the bonds between the people and the courts.
Third, we should choose inclusiveness and broader representation. We know that smaller juries are more likely to be more homogenous and lack even a single member of a minority group that constitutes a significant part of the community. We should move in the direction of making sure that the few jury trials we do have are more representative of the community, not less.
Fourth, the cost arguments against larger juries have always been weak. The civil jury is a unique and critical part of the U.S. legal system. This is not the place to pinch pennies. And we are already spending less on civil juries than we used to because we have fewer of them. We can afford to invest in the few civil jury trials we are fortunate enough to still have, while we still have them. Moreover, changes in technology have already reduced the cost of assembling venire panels and picking juries. It just takes fewer court personnel less time to manage juries than it used to take because much of the labor-intensive “paperwork” is now done electronically.
- “Let’s Seat Twelve This Time”
So, what can be done to reverse the trend and return 12-person juries to their historic prominence? An essential first step is to keep reminding judges and lawyers of what is at stake. We don’t want to let all that we’ve learned about the benefits of 12-person juries fade away and become forgotten. It is not yesterday’s news. As a starting point, we have three suggestions:
- Add Civil Jury Size to the Curriculum of Baby Judge’s School
Our first suggestion is simple and could be implemented immediately. We can’t think of a better place to start than to have jury size added to the curriculum of “Baby Judge’s School,” the training sessions for new (and pretty new) federal judges. This may be the best way to make a difference in the long run. Experience shows that judges are reluctant to alter their jury-trial practices once they become fixed. That makes it vital to reach judges when they will be most open to considering all of the alternatives.
- Revise the Benchbook, the Civil Litigation Management Manual, and the Handbook on Jury Use
Trial judges at all levels of experience can take a fresh look at their own jury-trial practices. Unfortunately, if a judge were to seek guidance from the federal judicial resources available today, those resources would not be of much help. We examined the Benchbook for U.S. District Court Judges, the Civil Litigation Management Manual, and the Federal Judicial Center’s 1989 Handbook on Jury Use in the Federal District Courts. None reminds judges that Rule 48 gives them a choice on the size of the jury to empanel. None addresses the pros and cons of jury size. We hope that, at the very least, these resources would be revised to remind judges that they may choose to seat a traditional jury of 12 and include some meaningful discussion of the impact of jury size.
- Add Civil Jury Size to the Programs at Bench/Bar Conferences, Workshops, and Similar Exchanges
We encourage judges and lawyers to add this topic to the menu of topics addressed at bench and bar events, continuing education programs, and similar exchanges. Lawyers can be reminded that they can ask for a jury of 12. It’s their voice. Judges can be reminded that they have the authority to seat a jury of 12, even if the lawyers don’t ask for it. It’s their choice. Everyone can be reminded of the many reasons why the jury system works better with 12. A good conversation is rarely a bad thing; here, it could really help.
Over the last 40-plus years, the 12-person civil jury has gone from being a fixture in the federal courts to a relative rarity. We should all be concerned. That the Supreme Court has allowed us to use smaller juries does not require us to use them. We can use 12-person juries. The benefits are large; the disadvantages marginal. We’re not suggesting this as a rule or a requirement. We are suggesting that judges not reflexively pick 6, 8, or even 10, and instead remember their authority to seat 12. And the great benefits of doing so.
Editor’s Note: This is an abbreviated version of an article that will be published in the Summer issue of Judicature, available at http://judicature.duke.edu.
See Richard S. Arnold, Trial By Jury: The Constitutional Right to a Jury of Twelve in Civil Trials, 22 Hoftstra L. Rev. 1, 22-23 (1993)
Colgrove v. Battin, 413 U.S. 149, 157-58 (1973).
 Fed. R. Civ. P. 48(a).
 The districts in our study are: AZ, CA-C, CA-N, CO, FL-M, FL-S, IL-N, MN, NY-S, OH-N, OH-S, OK-W, OR, TX-S, and WA-W. District-specific data is available in the forthcoming full version in Judicature.
 See Hans Zeisel, . . . And Then There Were None: The Diminution of the Federal Jury, 38 U. Chi. L. Rev. 710, 717 (1971).
See Michael J. Saks, The Smaller the Jury, the Greater the Unpredictability, 79 Judicature 263, 263-64 (1996).
See Michael J.Saks & Mollie W. Marti, A Meta-Analysis of the Effects of Jury Size, 21 L. & Hum. Beh. 451, 458-59 (1997).
See Saks, supra note 6, at 264; Zeisel, supra note 5, at 716.
See Saks, supra note 6, at 265; Zeisel, supra note 5, at 719-20.