Authored by Honorable Bronwyn C. Miller and Honorable Meenu Sasser

“Trial by jury is a highly valued attribute of American government. It was regarded by the founders as ‘an essential bulwark of civil liberty.’” Galloway v. United States, 319 U.S. 372, 397, 63 S. Ct. 1077, 87 L. Ed. 1458 (1943) (Black, J., dissenting in part, concurring in part). “The United States’s allegiance to the civil jury is the product both of its early colonial history and the constitutional debates at the conclusion of the Revolutionary War.”  Stephan Landsman, The Civil Jury in America, Law and Contemporary Problems, 5 (1999).  “When the initial draft of the United States Constitution failed to make a specific provision for trial by jury in civil cases, a cry of protest went up across the new nation.”  Id.  Heightened tension arose between the Federalists’ belief in the need for the embodiment of basic rights in the Constitution and the Anti-Federalists’ belief that ratification of these rights within the Constitution would undermine the autonomy of the people and states.  A compromise was reached, wherein the Seventh Amendment set forth the following clause:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.


In Jacob v. New York City, 315 U.S. 752, 62 S. Ct. 854, 86 L. Ed. 1166 (1942), Justice Murphy wrote:

The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts.

Id. at 752-53, 62 S. Ct. 854.  Despite this stark warning and a plethora of opinions rendered by various preeminent legal scholars that the right to civil jury trial should apply to the states, commonwealths, and incorporated territories, the Seventh Amendment has not been universally construed by the courts as an incorporated right under the Fourteenth Amendment.  Thus, the inviolable right to a civil jury trial exists only in federal court.

Although the majority of state constitutions embody the right to a civil jury trial, in contemporary times, the civil jury trial appears to be a vanishing phenomenon. Civil “[j]uries decide less than one percent of the . . . cases that are filed in court.”  Renee Lettow Lerner and Suja A. Thomas, The Seventh Amendment, Common Interpretation, Matters of Debate, https: // / interactive-constitution / amendments /amendment-vii.  Some commentators and historians have espoused the view that civil jury trials are doomed to extinction, as part of a self-perpetuating cycle “institutionalized in the practices and expectations of judges, administrators, lawyers, and parties.”  Marc Galanter and Angela Frozena, The Continuing Decline of Civil Trials in American Courts, Pound Civil Justice Institute (2011).  An examination of the reasons for the decline can result in successful prevention of extinction.

Civil jury trials necessary implicate significant risk for the participating parties.  Jury trials incur great cost and can result in little or no reward.  As the number of law school graduates continues to increase and legal services are increasingly computerized, outsourced, or performed by non-lawyers, stark competition may impact the ability of a firm to absorb the risk associated with civil jury trial.  United States Department of Labor, Bureau of Labor Statistics, lawyers.htm#tab-6.  In contrast to a jury trial, a mediated or negotiated settlement agreement provides for a definitive resolution to a case.  Thus, settlement is often a preferred form of risk management.

As fewer jury trials are conducted, less experienced practitioners are deprived of the opportunity to participate in or observe trials.  Thus, the art of trying cases cannot be emulated by newer generation attorneys.  The implementation of formalized mentoring programs could provide a viable remedy.  Experienced attorneys might be paired with less experienced attorneys to provide a framework within which courtroom knowledge can be achieved.

Finally, many jurists have recognized “the oft-discussed theory that an increase in judicial case management and pre-trial adjudication of cases-most notably on summary judgment-is driving the decline of the civil jury trial.”  Walker v. Yamaha Motor Co., Ltd. et al, 2016 WL 7325518, *1 (Fla. M.D. 2016) (J. Roy B. Dalton, Jr.). The critical issue under this view is “whether . . . judges discourage the litigants’ exercise of their constitutional right to trial by jury and trespass on the province of the jury by taking too active a role in judicial case management?”  Id. at 2.  Trial judges must balance the need to effectively manage dockets with the needs of the parties, commensurate with the nature and complexity of a given case.  Perspectives regarding scheduling issues should remain flexible and discretion must be exercised in a case-specific manner.

The civil jury trial is a necessary mechanism for parties to test the evidence supporting a claim in those cases that cannot be resolved without the intervention of jurors.  As a corollary effect, it provides jurors with a unique experience in civic involvement.  Thus, the essential role of jurors should not be eliminated in the civil arena. The prevention of the decline in civil jury trials can be managed through opportunity and adaptability. It is incumbent upon the legal profession to preserve this essential right.