Trials on a Downward Trend Even Before COVID-19, According to the ABA

Jury trials are less and less common in American courtrooms, and this downward trend was happening before the COVID-19 pandemic. According to an article recently published by the American Bar Association (“ABA”) Journal lawyers, judges, and lawmakers should seriously consider adjusting four common reasons why trials are not happening — mandatory arbitration, civil damage limits, mandatory minimum sentences, and criminal sentencing guidelines. The ABA’s recommendation was based on a four-year study conducted by its Commission on the American Jury (CAJ).

American Jury Project

The study included a survey of 1,460 attorneys and judges over a three year period from 2016 to 2019. The CAJ study results were published in Louisiana State University’s Louisiana Law Review. According to the article, both lawyers and judges questioned agreed that although jury trials can be more expensive, less predictable, and take longer they were fairer than other methods of resolving cases including bench trials. Additionally, lawyers and judges overwhelmingly agreed that the costs associated with jury trials are worth it.

Research shows that the number of jury trials in American courts has dropped so significantly that they have become an exception rather than the rule in the legal field. From 1963 to 2013, the percentage of federal lawsuits decided by a jury trial dropped from 5.5% to 0.8%. Likewise, the percentage of federal criminal cases decided by a trial by jury dropped from 8.2% in 1962 to 3.6% in 2013. 

Some other opinions obtained from the study included:

  • Prosecutors, defense lawyers, and judges all ranking jury trials as more fair than bench trials;
  • Plaintiff attorneys, defense attorneys, and judges agreed that the ranking of most fair to least fair in regarding to the method by which a case is resolved was mediation, jury trials, bench trials, and finally arbitration;
  • Lawyers’ perception is that judges and mediators are significant sources of pressure on a plaintiff to settle a matter prior to trial in addition to the plaintiff’s own attorney;
  • While judges believe defense attorneys are the only pressure on defendants to plead guilty prior to a trial, at least one-third of criminal defense attorneys point the finger at judges, prosecutors, and the relatives of defendants. 

Trial Statistics

Between 9% and 10% of federal criminal cases went before a jury trial 30 years ago. While this may seem like a small amount, by 2018 the percentage of defendants who received a jury trial dropped to only 2%. According to the article, this causes a crisis on three fronts:

  • Citizens lose the opportunity to participate and observe the American judicial system through jury service;
  • Trial attorneys cannot hone their skills in front of a jury during trial; and
  • Defendants are deprived of counsel with trial experience.

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