This article was first published in the Texas Bar Journal‘s December 2013 issue. — Ed.
The steady erosion of the American trial is our dirty little secret. A majority of the American public might be surprised to learn that there is indisputable statistical evidence that the number of jury and non-jury trials in our country is, and has been, sharply declining, both in absolute and relative terms.1 For example, in 2010, only 2,154 jury trials were commenced in federal district courts, which means, on average, Article III judges tried fewer than four civil jury trials that year. While jury trials in federal court obviously have declined, the decline in bench trials has been steadier and steeper.2 Even though the number of lawyers continues to increase, the number of trials is still decreasing.3
Nor is the decline in the number of cases tried due to a reduction in case filings. To the contrary, both civil case filings and dispositions actually have increased five-fold in the federal courts during the same time that the number of trials—both the rate of trials as well as the absolute number—has diminished substantially.4
What do these trends portend for the future? They mean that, despite its historical importance and value, we are slowly but surely losing one of our most precious institutions—a trial by jury or even any trial at all. James Madison, the drafter of the Seventh Amendment, would be puzzled by how we allowed this to happen, given his view that “[t]rial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”7