The denial of civil trial by jury was used in the Declaration of Independence as a justification for the American Revolution. Now, it’s hardly used at all.
The Civil Justice Research Initiative, or CJRI, of UC Berkeley School of Law published a report in September by Southwestern Law School associate professor Richard Jolly, Cornell Law School professor Valerie Hans and Robert Peck, an appellate lawyer and president of the Center for Constitutional Litigation. All three researchers are affiliated with CJRI, and their report examined the decline of civil juries and possible methods of revival.
According to Jolly, in 2019 jury trials made up 0.53% of federal civil disputes and 0.09% of civil disputes at the state level. The pandemic exacerbated this decline, Jolly added, as almost all 2020 civil jury trials were postponed.
“Although the civil jury may continue to exist in Americans’ collective conception of justice, actual jury trials are the extreme exception,” Jolly said in an email. “Our goal is to help revive the jury as an institution so it may be once again an indispensable component of our judiciary and democratic form of government.”
Jolly, Hans and Peck examined existing research to determine what was missing, analyzed jury verdicts and damage awards and conducted their own experiments and interviews. Their research resulted in six proposals for institutional reform.
The first three are intended to remove barriers to civil jury trials. Currently, those who want a civil trial by jury must demand one, Peck said. Instead, the researchers recommend that jury trial be the default for civil trials to honor the Seventh Amendment, which asserts the right to trial by jury in certain civil cases and prevents the jury’s decision from being overturned.
The report also addressed caps that a number of states have imposed on damages in jury trials.
“The suggestion is to do away with those caps because they are artificial and they take away some of the authority of the jury,” Peck said. “A number of the cases that ought to be brought are too expensive to bring simply because the compensation that you could win is so low compared to the cost of working the case.”
The last suggestion to remove barriers is expanding speedy trials with 12-person juries. According to Peck, empirical research shows having 12 jurors increased the level of discussion and accuracy of verdicts. The report also states expedited trials could provide a method to manage the backlog of cases imposed by the pandemic.
To promote fair and accurate jury fact-finding, the report’s last three suggestions recommend the use of 12-person juries across the board, active jury reforms and juries that are representative of the population.
According to Peck, the revival of the civil jury is dependent on changes made at the state level. If such proposals are not implemented, Hans said the political and financial power that some have over civil disputes will be exacerbated.
Juries, Peck added, would become a relic of the past.
“The civil jury remains a structural component of our democracy, but it has largely atrophied from nonuse,” Jolly said in an email. “Active measures can and should be adopted to help get things moving and bring laypeople back into the important work of administering justice.”