Civil Jury Trials Research Articles

The empirical estimation of the cost-minimizing jury size and voting rule in civil trials

Since the early 1970s, the literature examining the court system has placed much emphasis on the importance of the jury size and voting rule when analyzing the jury decision-making process. In addition, researchers have also used deductive reasoning to theoretically determine the cost-minimizing jury size and voting rule with regards to Type I and Type II errors. In this paper, we take this analysis one step further by empirically estimating the cost-minimizing jury size and voting rule in civil jury trials.

General Civil Jury Trial Litigation in State and Federal Courts: A Statistical Portrait

Using data from the Civil Justice Survey of State Courts and the Administrative Office of the U.S. Courts, this article compares general civil (tort, contract, and real property) jury trials concluded in a sample of state courts and all federal district courts in 1992, 1996, and 2001. The study's key findings are: (1) that the types of civil cases coming before state and federal juries differ substantially; (2) that overall plaintiff win rates are nearly the same in both state and federal courts; (3) that the damages awarded to plaintiffs in federal courts are substantially higher compared to their state counterparts; (4) that although the vast majority of jury trials take place in the state courts, the federal courts accounted for a relatively significant minority of product liability trial litigation; (5) that state courts took substantially longer to dispose of civil jury trials than federal courts; and (6) that trend data show similar patterns of declining trials and stable plaintiff win rates in both court systems.

Testimony to Constitution Subcommittee of the U.S. Senate Judiciary Committee Regarding the Arbitration Fairness Act of 2007 and the Constitutional Duty of Congress to Restore Citizens' Seventh Amendment Rights

The Framers' election to preserve the common law right to civil jury trial in the Bill of Rights means that businesses may not remove this right from citizens by making its waiver a precondition to delivery of goods, services or employment. This conclusion is compelled by two considerations. First, the decision by the Framers to include this right in the Bill of Rights designates it as the kind of fundamental right waiver of which must be protected from any form of coercion, including the coercion imposed when a business makes waiver of the right a non-negotiable condition to delivery of a good, service or employment. Second, looking to the text of the Constitution, the decision by the Framers to protect the civil jury trial right with Article V's strong supermajority amendment requirements evinces their intent that the scope of the right's applicability not be subject to reduction by a less restrictive amendment mechanism - be it a majoritarian statutory amendment process (something the Framers contemplated) or what amounts to private legislation through standardized contractual waivers, a future development that the Framers, understandably, failed to anticipate. Pursuant to the Supreme Court's unconstitutional conditions doctrine, the state may not seek advance waiver of a citizen's Sixth Amendment criminal jury trial right in favor of bench trials in return for some unrelated benefit such as subsidized public housing or college tuition assistance. The coerciveness of such an offer becomes clear when one realizes that if the benefit offered were sufficiently valuable the citizen would readily waive her criminal jury trial right even if she strongly preferred jury trials over bench trials. Symmetrically, the Seventh Amendment civil jury trial right should enjoy the same protection against coercive removal as that provided the Sixth Amendment criminal jury trial right. Thus, a business should not be permitted to require that a citizen waive his jury trial right as a take-it-or-leave-it precondition to delivery of goods, services or employment. Coercion is coercion whether imposed by the state or a private party. Properly understood, it is protection against this form of coercion that constitutes the core minimum distinction between fundamental Constitutional rights and ordinary property interests. Viewed from a slightly different perspective, the very fact that lawmakers set forth an individual right applicable against other private parties in a constitution instead of a statute signals an intent that such right trump other persons' standard property rights where necessary to preserve citizens' ability to invoke such constitutional right. For example, in PruneYard Shopping Center v. Robins, California's Supreme Court held, and the Supreme Court unanimously affirmed, that California shopping centers may not make waiver of a customer's reasonably exercised state constitutional free speech and petition rights a condition to entry. Thus, the California Supreme Court found that the inclusion of these individual rights in California's constitution signals an intent that such rights trump a shopping center owner's common law rights to exclude people from its property and to control the activities permitted thereon. Following the same logic, the decision by the Framers to preserve in the Bill of Rights rather than in an ordinary statute (or not at all) the common law civil jury trial right signals an intent that such right trump the otherwise operable common law right of a business to make waiver of this or any other right a condition to delivery of goods, services or employment.

Rights and Commerce

The goal of this article is to identify and fill an important gap in the theory of entitlements. A property rule with respect to a particular entitlement in a contemplated multi-entitlement transaction can mean one of two things: 1. The holder looks to net value received - a kind of collective property rule where consumer surplus with respect to some components of the transaction can subsidize undercompensation with respect to the particular entitlement - i.e., where the market price for the particular entitlement is less than the holder's subjective value (in such case the holder possesses a market holdout right and the entitlement is regulated by a market property rule); or 2. the holder has an absolute right to retain the entitlement while entering into the transaction and thus can compare the value offered specifically for the entitlement (in a competitive market, its market price) with the holder's subjective value in deciding whether to part with it (in such case the holder possesses an absolute holdout right and the entitlement is regulated by an absolute property rule and an anti-bundling inalienability rule). These two different holdout rights distinguish legal standard entitlements — such as most property interests as well as gap-filler default entitlements - from legal autonomy rights - those rights conceived by lawmakers and society as being so fundamental or personal to the individual that, if they can be permitted to be ceded at all, can only be ceded with the autonomous consent of the holder. An autonomy right endows its holder with an absolute holdout right to ensure the holder's ability to retain the right within the right's scope and complete autonomy with respect to any decision to cede the right but precludes potentially efficient bundling of non-negotiable waiver or transfer of the right as part of standardized multi-entitlement transactions. On the other hand, the market holdout right conferred on holders by a standard entitlement provides the holdout right sufficient to elicit useful market prices and permits efficient standardization but compromises autonomy with respect to the individual entitlements that are subject to multi-entitlement transactions. Some legal entitlements, such as the common law right to civil jury trial preserved in the Seventh Amendment, when formed were protected by structural (rather than express legal) absolute holdout rights that have since been eroded by practices (such as standardized consumer commerce contracts) motivated and enabled by technological advances. This creates a choice between articulating a legal absolute holdout right with respect to the entitlement or permitting the content of the legal entitlement to be fundamentally altered.

Do Federal and State Courts Differ in How They Handle Civil Trial Litigation: A Portrait of Civil Trials in State and Federal District Courts

Using data from the Civil Justice Survey of State Courts and the Administrative Office of the U.S. Courts, this article compares general civil (tort, contract, and real property) jury trials concluded in a sample of state courts and all federal district courts in 1992, 1996, and 2001. The study's key findings are: (1) that the types of civil cases coming before state and federal juries differ substantially; (2) that overall plaintiff win rates are nearly the same in both state and federal courts; (3) that the damages awarded to plaintiffs in federal courts are substantially higher compared to their state counterparts; (4) that although the vast majority of jury trials take place in the state courts, the federal courts account for a substantial portion of damage awards, especially for product liability cases; (5) that state courts took substantially longer to dispose of civil jury trials than federal courts; and (6) that trend data show similar patterns of declining trials and stable plaintiff win rates in both court systems.

The decline of civil jury trial in nineteenth-century England

The nineteenth century saw the beginning of the decline of jury trial as the main dispositive mechanism in civil cases in the Superior Courts. The Common Law Procedure Act 1854 gave civil litigants the choice of jury trial, and during the remainder of the century the proportion of litigants choosing jury trial steadily declined. However, the seeds of this decline were sown in the two decades prior to 1854, during which time three factors combined to undermine the institution of the civil jury: recognition among lawyers of the integrity of the bench, the efforts made by lawyers to professionalize the practise of law, and the successful introduction in 1846 of juryless trials in the County Courts.

Research Note: Examining Civil Trial Litigation in State Courts

Since 1992, the Bureau of Justice Statistics has collected data on civil disputes adjudicated by trial in state courts of general jurisdiction. Although civil trials represent a small fraction of all civil dispositions, they are important to examine because they can set the overall context for the civil justice system as a whole. The most recent civil trial survey tracked nearly 12,000 general civil (e.g., tort, contract, and real property) jury and bench trials disposed of in a sample of the nation's 75 most populous counties during the year 2001. An overview of the research findings and a summary of their implications are presented.

The Civil Jury and American Democracy

Herbert Bernstein, like others who admire European institutions, never acquired a taste for American civil procedure. Having taught him precisely that course at the University of Michigan Law School in 1965-66, I always took this as a personal failing on my part. What Herbert and others of his persuasion are unable to appreciate is the central importance in the American scheme of government of the right to jury trial in civil cases. As a tribute to him, I will explain one more time why that institution is indispensable and why it explains other features of American government that many international observers, and not a few Americans, find objectionable. The importance of the institution is not measured by the number of civil jury trials, which is not great. It is, however, the right to jury trial that makes the rest of the constitutional scheme acceptable. And other institutional arrangements were structured around the concept of a democratic courthouse. In this essay, I will briefly account for how the civil jury came to America, why it is here to stay, and how other features of American civil litigation are linked to that central institution. My words are addressed in part to foreign lawyers who are not intimately familiar with American institutions.

The Indulgence of Reasonable Presumptions: Federal Court Contractual Civil Jury Trial Waivers

The Indulgence of Reasonable Presumptions: Federal Court Contractual Civil Jury Trial Waivers

Appeal from Jury or Judge Trial: Defendants' Advantage

The prevailing expert opinion is that jury verdicts are largely immune to appellate revision. Using a database that includes all federal civil trials and appeals since 1988, we find that civil jury trials as a group are not so special on appeal. But the data do show that defendants succeed more than plaintiffs on appeal from civil trials, and especially from jury trials. Defendants appealing their losses after trial by jury obtain reversals at a 31% rate, while losing plaintiffs succeed in only 13% of their appeals from jury trials. Both descriptive analyses of the results and more formal regression models support an explanation based on appellate judges' attitudes toward trial-level adjudicators. The appellate court is more favorable to the defendant than is the trial judge and especially the jury. The large difference between appellate court and trial jury stems from the appellate judges' sizable misperceptions about the jury.

Canada: Changing Priorities

Is it possible to describe a typical civil case in Canada? While there is probably no such thing, one can describe, at least in broad terms, certain common features of Canadian civil litigation. A civil action in Canada would be commenced in the general jurisdiction trial court of a province or territory. These courts are the result of the superimposition of an essen tially unitary court structure on a federal system of government. The courts and their nonjudicial staff are the constitutional responsibility of the provincial governments, while the judges that preside in the courts are appointed and paid by the federal govern ment. They have original jurisdiction in virtually all matters regardless of whether the subject matter of the suit is within the legislative competence of the federal or provin cial government. The division of legislative and appointment authority complicates effective management of the courts. Once a case is initiated, there is a significant chance that it will not be opposed. One recent study found that 65 percent of initiated actions are not defended. If the action is defended there is an even greater likelihood that the case will not reach trial. For exam ple, in at least one jurisdiction, only about 4 percent of the initiated actions are tried: The litigant may encounter a variety of court-sponsored mechanisms to promote set tlement. These will probably include pretrial conferences, case management meetings, and referral to alternative dispute resolution, particularly mediation. Given the very high rate of settlement even absent these sorts of interventions, it is not surprising that the available statistics show that their main contribution is facilitating earlier rather than more settlements. If the case proceeds to trial, it will almost certainly be a trial by judge alone. Although civil jury trials are generally available, they are optional, and the option is selected in a fairly small minority of cases. Our hypothetical litigant likely will be represented by a lawyer, and there is a good possibility that the lawyer will, at least to a degree, specialize in litigation. Although all Canadian lawyers are entitled to appear in court, most civil litigation of any sophistica tion is carried on by lawyers who specialize in this area. The client's fee arrangement with the lawyer will most likely be based on an hourly rate for services rendered, although the lawyer's final bill to the client (subject, of

Management Note Bringing Technology to the Jury Deliberation Table

Over the past decade, technological innovations adopted by courts to enhance the general courtroom trial process and the court administrative environment, have met with relatively little resistance. However, traditional jury deliberation remains the most well guarded institution. Juries are tasked with absorbing sometimes months of testimony, often including a plethora of technical and scientific facts, which they have no means of record ing or assimilating, except what they can recall. Expecting jurors to render a verdict without the aid of even the most basic tools has raised concerns, which have been underscored by the Orenthal James Simpson trial. Could juries potentially benefit from a structured process facilitated by technology? To test this hypothesis, a field study was conducted in Fairfax County (Virginia) Court, October5,1995. The authors conclude that further jury testing using technology should be conducted beginning with civil jury trials. The authors discuss the ethical and legal concerns and offer a proposed structure for deliberating personal injury cases. Ata time when confidence in the American jury system is at an all-time low, new approaches to jury deliberations must be considered.

Trial Language: Differential Discourse Processing and Discursive Formation

This study of Anglo-American legal discourse is the first comprehensive discourse analysis of American legal language in its prototypical setting, the trial by jury. With ethnographic data gathered in a civil jury trial, the book compares the discourse processing of the legal participants and the lay jurors in the trial.This study, examining an entire trial, finds that it is constraints at the level of a Foucauldian discursive formation that prevent lay understanding. Those constraints include the allocation of narrative speaking roles primarily to legal speakers in genres in which no sworn evidence is given, the suppression of narrative in ordinary witnesses, a set of restraints on witnesses' use of certain categories of evidentials, the legal topic originating in textual authority unknown to the lay participants, specific distribution of verb forms by legal genre, and a linguistic “burden” accompanying the legal “burden of proof” in the requirement that the lawyer of the moving party also use and explain technical legal terms to the jury at the same time as he or she presents evidence. All of these factors contribute to the incomprehensibility of legal discourse to lay auditors, resulting in the jury making their decision based on a commonsense script of the events precipitating the trial.The study concludes by arguing for a Foucauldian discourse analysis of institutional languages, a social theory powerful enough to account for the power and tenacity of these languages, where traditional linguistic explanation has failed.

“Loonies” and the Law: Jury Costs and the Lack of Civil Jury Trials In Canada

“Loonies” and the Law: Jury Costs and the Lack of Civil Jury Trials In Canada

Judicial Whipsaw: Interest Conflict, Corporate Business & the Seventh Amendment

In this article Professor Orren examines the Seventh Amendment right to civil jury trial as an example of the contemporary abridgement of economic civil liberties. She argues not only that recent interpretations have generally weakened the protection afforded by this Amendment, but that they have altered the civil jury's function in American government.

The Civil Jury Trial and the Law-Fact Distinction

The Civil Jury Trial and the Law-Fact Distinction

Civil Jury Trial: A Scottish Assessment

Civil Jury Trial: A Scottish Assessment

An American Lawyer Looks at Civil Jury Trial in Scotland

An American Lawyer Looks at Civil Jury Trial in Scotland

Abbott's Trial Brief. Civil Jury Trials

Abbott's Trial Brief. Civil Jury Trials